Judgment Day

The Third's War Room April 17 was Judgment Day for the Appellate Division, Third Department, and a number of criminal case decisions were released. The holdings are pretty bland—most of the cases involved plea deals, which almost always result in decisions restating long-standing precedent and affirming the lower court’s ruling.

People v. Saddlemire, however, may be of interest to other assigned counsel or attorneys who regularly handle plea cases. Often times while I’m waiting for lower court trial documents, I’ll be assigned a few plea cases. More often than not, the trial court is so diligent in questioning the defendant that very little is available for argument on appeal. The voluntariness of the plea, ineffective assistance of counsel, and the sentence are the main issues for review. The court’s holding in Saddlemire, while nothing new, gives us even less to work with.

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The 5-page document is available here, through the United States Sentencing Commission website. The website also provides this:

On April 16, 2008, the Commission voted to amend the commentary to §2D1.1 (Unlawful Manufacturing, Importing, Exporting, or Trafficking (Including Possession with Intent to Commit These Offenses); Attempt or Conspiracy) to revise the manner in which combined offense levels are determined in cases involving cocaine base ("crack cocaine") and one or more other controlled substance. The Commission also voted to amend §1B1.10 [Reduction in Term of Imprisonment as a Result of Amended Guideline Range (Policy Statement)] to provide retroactive effect to the amendment to §2D1.1. Official text of the amendments will be posted on the Commission's website at www.ussc.gov and incorporated into a forthcoming supplement to the Guidelines Manual.

These amendments take effect May 1, 2008. Until that date, the court should apply §2D1.1 as set forth in the 2007 Guidelines Manual, and §1B1.10 as set forth in the Supplement to the 2007 Guidelines Manual effective March 3, 2008

Okay, maybe that’s not exactly what a teacher in Indiana said to a student before physically disciplining her, but you know she was thinking it. Paula Fettig, a teacher at Beach Grove High School, was accused last year of slapping a student during gym class. Fettig stated she only grabbed the girl by her chin to get her attention. On April 15, 2008, The Indiana Court Appeals decided State of Indiana v. Fettig, and held that Paula Fettig’s actions fell short of being “cruel or excessive,” the standard in Indiana to convict for assault and battery. A few highlights from the decision:

The majority:

Our legislature has provided authority to school personnel to discipline students by stating in all matters relating to the discipline and conduct of students, school corporation personnel: (1) stand in the relation of parents to the students of the school corporation; and (2) have the right to take any disciplinary action necessary to promote student conduct that conforms with an orderly and effective educational system. I.C. § 20-33-8-8(b). Further, Indiana Code section 20-33-8-9 provides that teachers “may take any action that is reasonably necessary to carry out or to prevent an interference with an educational function that the individual supervises.”

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This won’t be a reoccurring column (I hope), but it seems like new stories about DNA evidence, or in some cases, the lack thereof, are coming out every day. Here’s the latest:

“Lawyers: New evidence in Austin yogurt shop murders”; The Houston Chronicle reports a DNA sample found in new tests in the case of four girls murdered at an Austin yogurt shop in 1991 doesn’t match the DNA of two men awaiting trial. Prosecutors argue the new evidence doesn’t exonerate the defendants because the DNA could have come from another person before the crime was committed. Defense attorneys claim the new results should clear the men charged.

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The Los Angeles Times has this effective opinion about California’s exorbitant prison costs:

Lawmakers are crying foul about the added burden on the budget, even though they have no one but themselves to blame. A prison crisis that combines overcrowding, a negligent healthcare program and a crumbling juvenile justice system has been worseningfor three decades, during which time dozens of studies have chronicled the problems and pointed the way to solving them. The reports are now gathering dust on a shelf somewhere, ignored by lawmakers. Indeed, legislators and the electorate have decisively made matters worse by approving get-tough-on-crime initiatives that further cram prisons and do nothing to address conditions inside.

One of the latest studies, released in January 2007 by the independent state oversight agency known as the Little Hoover Commission, is a model of the form. It practically shrieked at lawmakers to implement the needed reforms, which include creating an independent sentencing commission that could lengthen terms for the most dangerous criminals while creating community-based options for nonviolent offenders, reinventing the state's disastrously inefficient parole system and expanding prison-based drug rehabilitation and job-training programs.

A year later, the Legislature has acted on none of those recommendations. Its sole accomplishment on corrections was to approve $7.9 billion in new prison and jail construction.

Some related posts on the “prison crisis”:

• More talk on the U.S. prison population and its economic impact
• Keep New York prisons open, just in case
• States May Free Inmates to Save Millions
• California's Money Pit: Death Row

SCOTUSblog has two Baze updates: "First post-Baze maneuvers" and "Baze Commentary: Justice Stevens’ Concurrence”. Highlights for the first update, second is provided in full:

"First post-Baze maneuvers":

The state of Florida moved quickly on Thursday to get Supreme Court permission to carry out the execution of a death-row inmate, and a prisoner in Mississippi asked the Court to rule itself or tell a lower court to rule on his challenge to that state’s execution procedure. These were the first filings in the Court in the wake of Wednesday’s ruling upholding the basic elements of execution by use of lethal drug injections.

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The U.S. Court of Appeals for the Tenth Circuit published a decision yesterday in the case of U.S. v. Gabaldon. Frank Gabaldon, proceeding pro se, appealed the district court’s dismissal of his motion under 28 U.S.C. § 2255 on the ground that the defendant’s motion was filed after the one-year time limit imposed by § 2255(f) had passed.

Gabaldon’s motion was due on March 21, 2006. On February 2, 2006, however, he was placed in segregation and prison officials confiscated all his legal materials. Gabaldon didn’t receive his legal papers until April 4, 2006 and filed his § 2255 motion on April 26, 2006, which was 36 days late.

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The Washington Post has this article today. Here’s the intro:

The Senate moved yesterday toward asking the Justice Department for a criminal investigation of a $10 million legislative earmark whose provisions were mysteriously altered after Congress gave final approval to a huge 2005 highway funding bill.

In what may become the first formal request from Congress for a criminal inquiry into one of its own special projects, top Senate Democrats and Republicans have endorsed taking action in connection with the earmark that Rep. Don Young (R-Alaska), former chairman of the House Transportation and Infrastructure Committee, inserted into the legislation.

For most, the moratorium is over.The Supreme Court’s decision in Baze yesterday has generated hundreds of news stories. Here are two interesting pieces:

“Lethal injections ruled not cruel punishment”; Discussing when executions in California could resume, the San Francisco Chronicle provides “obstacles remain in California, where a federal judge's ruling has forced the state to overhaul its lethal injection procedures and build a new execution chamber and where another judge has told the state to seek public input before changing its rules.”

“Moratorium on Lethal Injection Is Over, but Hardly the Challenges”; Adam Liptak of the New York Times writes this: “ the fractured decision may actually slow executions elsewhere … as lawyers for death row inmates undertake fresh challenges based on its newly announced legal standards.”

The Fifth Circuit Blog has a post today titled, “Begin the Begay (-Based Arguments, That Is): SCOTUS Holds Felony DUI Not an ACCA "Violent Felony." Here’s the intro:

Today's Supreme Court news will likely be dominated by coverage of Baze v. Rees, the lethal-injection case, but today's decision in Begay will likely have a far bigger impact in terms of the number of cases affected.

At issue in Begay was whether felony DUI is a "violent felony" for purposes of the Armed Career Criminal Act's 15-year mandatory minimum sentence. More specifically, does felony DUI qualify under 18 U.S.C. § 924(e)(2)(B)(ii), which includes an offense that "is burglary, arson, or extortion, or otherwise involves conduct that presents a serious potential risk of physical injury to another." (emphasis added).

The answer: No. The Court concluded that, in order to give effect to every word in the definition, the "otherwise clause" must be interpreted to include only offenses that "are roughly similar, in kind as well as in degree of risk posed, to the" listed offenses. And how do we know if that rough similarity exists?

The rest of the article is here.

The Supreme Court has posted the oral argument transcript from the Kennedy case on its website. You can access the 73-page document here.

The Dallas Morning News has this article discussing this morning’s arguments; “U.S. Supreme Court hears Texas argue death penalty for child rapists.”

Straight from SCOTUSblog:

Today’s opinion by Justice Breyer in Begay v. United States (06-11543) is now available here. Justice Scalia filed an opinion concurring in the judgment. Justice Alito filed a dissenting opinion, in which Justices Souter and Thomas joined.

[In Begay,] the court found that drunk driving is not a “violent felony,” at least for purposes of an enhanced prison sentence under the Armed Career Criminal Act. The ruling, written by Justice Stephen G. Breyer, came on a 6-3 vote in Begay v. U.S. (06-11543).

Today’s unanimous opinion by Justice Ginsburg in Burgess v. United States (06-11429) is now available here.

In a second decision on an enhanced sentencing law, the Court ruled that a drug crime that is punishable by more than one year in prison is a “felony drug offense” even if state law classifies it as a misdemeanor. The unanimous ruling came in the case of Burgess v. U.S. (06-11429).

Today’s opinion in Baze v. Rees (07-5439) is now available here. The Chief Justice announced the judgment of the Court and delivered an opinion in which Justices Kennedy and Alito joined. Justice Alito also filed a concurring opinion. Justice Stevens and Breyer each filed an opinion concurring in the judgment. Justice Scalia and Thomas each filed an opinion concurring in the judgment, in which the other joined. Justice Ginsburg filed a dissenting opinion in which Justice Souter joined.

Baze is the superstar here, but I'm interested in the other two as well. I’ll need some time to review, but here's the SCOTUSblog recap (in its entirety) on Baze:

Lethal injection allowed

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Four days ago Philadelphia Mayor Michael Nutter and the City Council approved a package of gun control laws, but District Attorney Lynne M. Abraham says she believes the laws are unconstitutional and won’t enforce them. The Philadelphia Inquirer has the story:

[District Attorney] Abraham said that as a lawyer and elected official, she was bound to obey rulings of the Pennsylvania Supreme Court. In 1996, the state's high court threw out a city ordinance to regulate assault weapons, ruling that the state legislature had passed a law in 1994 that specifically barred municipalities from regulating guns.

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The U.S. Supreme Court will hear arguments this morning in Kennedy v. Louisiana, a case involving the constitutionality of imposing the death penalty for child rape. In 1976 the Supreme Court banned capital punishment for the crime of rape, but Louisiana has since passed a law allowing execution for rape of a child under age 12, reasoning the Court’s holding only applied to rape of an adult woman. And even though, theoretically, there are other crimes a person could be convicted of and sentenced to death (i.e., treason, espionage), capital punishment has been used exclusively for murder convictions for decades.

The outcome of the case is expected to have a significant impact around the country, with Georgia, Montana, Oklahoma, South Carolina and Texas all have laws authorizing capital punishment for the rape of a child, and Missouri indicating it may follow suit. Any state wishing to enact such legislation, however, must outline the circumstances in which the death penalty is warranted.

Simply sentencing child rapists to death, without aggravating circumstances, may be viewed by the Supreme Court as an arbitrary imposition of the death penalty. Under Louisiana law, a defendant convicted of aggravated rape of a child under the age of 12 qualifies for a death sentence. One of Kennedy’s arguments is that the Louisiana statute simply states the crime (aggravated rape) and restates the elements (child under 12).

Kennedy argues no aggravating factors are present, and most of the other states mentioned above with similar statutes require the defendant have a previous conviction of sexual assault. Louisiana maintains its statute should be narrowly construed because it only applies to defendants that seek out children under 12. The Court may find this is not narrow enough, because neither the judge nor the jury has an basis to differentiate between individual child rapists.

Additional coverage:

• SCOTUSblog Argument Preview
• Texas to argue for right to execute child rapists at Supreme Court
• Court meeting to weigh death penalty for child rapists
• Should child rapists face death penalty?

This story appeared late last night in The Dallas Morning News and discusses the case of Thomas Clifford McGowan Jr. who has spent 23 years in prison after being convicted of rape and burglary in 1985. State District Judge Susan Hawk is expected to recommend McGowan be released from prison today, after agreeing new DNA evidence proves he could not have committed the crimes.

Failing to follow proper identification standards is scary indeed. Too often police officers are under so much pressure to solve a crime that they end up putting pressure on themselves to make the facts fit. While this issue usually surfaces more regularly in cases where the defendant is poor and does not have the resources to hire a high-powered criminal defense attorney, it is something that could happen to anyone. I like to hear about these kinds of cases—not only because the defendant is exonerated, but also because it gives me hope that the media exposure will force law enforcement officials to follow the law. Here are highlights from the article:

What is remarkable about Mr. McGowan's case, according to one of his defense attorneys, is the ordinariness of the process that ultimately branded him a rapist.

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The Baltimore Sun has a great op-ed piece here about the Maryland Legislature and how it refuses to go “soft” on nonviolent drug offenders. Ronald Fraser writes the following:

During the recent session of the Maryland General Assembly, the House of Delegates rejected a bill that would have given courtroom judges greater sentencing leeway for first-time, nonviolent drug law offenders - including drug treatment programs rather than prison. The bill, sponsored by Del. Curtis S. Anderson of Baltimore, would have been a step in the right direction, but it was defeated for the usual reason: politicians' fear of being labeled "soft on crime."

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Death Row at San Quentin, which currently houses 622 inmates.The Death Penalty Information Center has this short summary of a study recently completed by the Center on Juvenile and Criminal Justice (CJCJ) on the relationship between homicide and execution rates. The results are quite interesting, and continue to prove that capital punishment is not an effective deterrent. Here are the highlights:

• States that execute many people and states that execute no one show the biggest decline in homicides (34% and 36% declines, respectively).
• States that execute few people have the least decline (24%) in homicides.
• The data shows that the homicide rates in states such as Texas, which leads the nation in executions, and in non-execution states such as New York, show the biggest declines.

The study looked at the effect of the 1,051 legal executions on the 446,457 homicides in the 50 states and D.C. during the 1984-2006 period.

" Two Separate Societies: One in Prison, One Not"; Marie Gottschalk provides this opinion piece in the Washington Post. Here’s the intro:

Forty years ago, the Kerner Commission concluded in its landmark study of the causes of racial disturbances in the United States in the 1960s: "Our nation is moving toward two societies, one black, one white -- separate and unequal." Today we are still moving toward two societies: one incarcerated and one not. The Pew Center on the States released a study in February showing that for the first time in this country's history, more than one in every 100 adults is in jail or prison. According to the Justice Department, 7 million people -- or one in every 32 adults -- are either incarcerated, on parole or probation or under some other form of state or local supervision.

And Sentencing Law and Policy notes this article, from The Detroit News: “Bulging prisons drain Michigan's budget; State faces hard choices as get-tough laws put more behind bars.” See my prior posts here and here for more about other states grappling with the high costs of prisons.

“At state level, more attempts to limit guns” ; The New York Times has this article today about 38 states considering legislation to increase gun restrictions, focused on improving methods to trace guns used in crimes and cutting off firearm access to convicted criminals and the mentally ill. Earlier this year, President Bush signed into law a program that provides federal money to states to keep current the criminal history and mental health records in the National Instant Criminal Background Check System. More than a dozen states have signed or are debating bills that would require states to upload mental health records to the National Instant Check System.

Related is this NY Daily News story, “Anti-gun crusader Bloomberg salutes Wal-Mart on new tough sales policy”; New York’s Mayor Bloomberg, surrounded by Republican and Democratic mayors from dozens of cities, announced that Wal-Mart will implement a tougher firearms sales policy. The country’s biggest gun seller will now videotape every purchase. Bloomberg also released a TV ad calling for an end to the loophole in federal law that permits firearms sales at gun shows without a background check. The ad features the current presidential candidates, and Bloomberg is providing most of the money to air the ad in the candidate’s home states and Pennsylvania. Here’s the clip:

In other news, the Louisville Courier-Journal has this headline: “Sex abuse bill signed into law.” From the article:

Gov. Steve Beshear signed into law a measure toughening the penalties for sexual abusers and those who fail to report them, the first legal reform in the state following the sex-abuse crisis in the Roman Catholic Church. Since 2003, Roman Catholic dioceses and religious orders in Kentucky have agreed to pay a total of more than $100 million to more than 500 people in lawsuits over sexual abuse by priests and others associated with the church. The cases revealed multiple instances in which bishops kept known abusers in ministry without warning parishioners. The bill makes virtually all types of sexual offenses against minors felonies, which means they carry tougher penalties and can be legally prosecuted whenever the victim comes forward.

Tomorrow the U.S. Supreme Court will hear oral arguments in Irizarry v. United States, a case involving judges’ duty to notify parties before departing from the sentencing guidelines.  If you’re looking to get up to speed quickly on all the important aspects of this case, check out the Argument Preview provided by SCOTUSblog.  Here’s the quick version (from the Preview) of what each side is arguing:

Irizarry’s Petition:

The Court should grant the writ because the decisions of the courts of appeals were split with regard to whether the Rule 32(h) notice requirement survived United States v. Booker, which rendered the Sentencing Guidelines advisory. Irizarry noted that the Eleventh Circuit’s rule was in line with that of the Third, Seventh, and Eighth Circuits, while the Second, Fourth, and Ninth Circuits found Rule 32(h) applicable in post-Booker cases, regardless of whether the above-guideline sentence was characterized as a variance or a departure. Furthermore, Irizarry noted that the First Circuit acknowledged the circuit split.

Irizarry argued that certiorari was warranted to avoid unwarranted sentencing disparities. He further argued that the determination whether notice is required should not turn on whether the sentence is characterized as a “variance” or a “departure,” because in either situation, the parties are not easily able to guess the grounds on which the court might choose to vary.

Brief in Opposition:

In its brief in opposition, the United States acknowledged the circuit split but stated that, “in the United States’ view, Rule 32’s notice requirement applies” to a decision by a sentencing court to exercise its post-Booker discretion to impose a non-Guidelines sentence based on § 3553(a) factors. Despite this agreement on the legal rule, the United States urged the Court not to review the question at this time for three reasons. First, the failure to provide Irizarry with notice was harmless error, because Irizarry’s past conduct was detailed in the presentence report and he “has never pointed to any additional evidence he would have introduced or argument he would have made if he had known before the sentencing hearing that the district court intended to impose a non-Guidelines sentence on that basis.” Second, the Judicial Conference was considering the possibility of amending Rule 32 to clarify the notice issue, which would make the Court’s intervention unnecessary. Finally, the United States urged the Court not to address the notice issue until after its disposition of Claiborne v. United States and Rita v. United States because the decisions in those cases, which considered the role of the Sentencing Guidelines after Booker, might inform the correct resolution of the issue here.