By now most of the legal world was rocked on its heels with the news that Justice Clarence Thomas spoke during an oral argument has recovered.  This video segment appeared on Comedy Central’s “The Daily Show with Jon Stewart.
There has been a lot of dispute about exactly what Justice Thomas said because it was hard to hear him. Apparently he was reacting to an attorney’s suggestion that a defendant’s lawyer was a good lawyer, having gone to Yale. Some claimed that Justice Thomas, a Yale graduate, seemed to dispute that.  The claim has been that Justice Thomas said, in a mysteriously eloquent way,  “Well—he did not.” Because the Justice was hard to hear and more importantly because his comment was so unexpected no one knows if Justice Thomas actually intended anyone to hear what he said. Until today it was arguable that the instant replay ruling would find that he did not officially say anything thereby preserving his unspoken streak of oral arguments. In fact there has been speculation in some legal circles that Justice Thomas would use a challenge flag in an attempt to preserve his silence streak.( pursuant to a new rule adopted by the Supreme Court’s competition committee each Justice can challenge two such rulings each term but they lose a time out if their challenge does not prevail).  Alas no flag was thrown and the official U.S. Supreme Court oral argument transcript has been released. Apparently Justices can do the same thing Senators can do in the Congressional Record. Both apparently can revise and extend their  remarks. See page 42 of the newly revised official transcript of oral argument in Boyer v. Louisiana, No. 11-9953, to find the latest version of what Justice Clarence Thomas said after seven years of silence.

Legislation to re-authorize the Violence Against Women Act is expected to be reintroduced in the 113th Congress.  The 112th Congress was not able to reach agreement on the re-authorization legislation in spite of efforts in the lame duck session.  After the election, Vice President Joseph Biden and House Majority Leader Eric Cantor (R-VA) tried to reach a compromise on the three controversial issues:  (1) broadening tribal authority to enforce restraining orders, (2) relaxing limits on temporary U visas for immigrant women who have been victims of domestic violence, and (3) banning discrimination by grantees based on sexual orientation or gender identity.

On December 3, 2012, Representatives Darrell Issa (R-CA) and Tom Cole (R-OK) introduced the Violence Against Indian Women Act of 2012 (H.R. 6625) that contained the Senate provision regarding tribal lands with a clarification that a defendant charged with a crime under this law would be able to petition the appropriate Federal district for removal.  Some saw the introduction of H.R. 6625 as a compromise that would allow Congress to send a VAWA re-authorization to the President’s desk, but the proposal met with some House GOP resistance. Efforts continue to reach agreement on re-authorization legislation. Virtually all of the major court organizations have supported the re-authorization.

Recently a district court in Michigan denied a criminal defendant’s habeas petition in which he argued that the prosecutor’s use of his pre-arrest silence as substantive evidence of his guilt violated his constitutional right to silence. See Hall v. Bell, Case No. 10-CV-10438 (E.D. Mich. Aug. 3, 2012). In doing so, the district court acknowledged the fact that the Supreme Court has yet to address the issue. As reported in Circuit Splits the Unites States Supreme  Court’s silence on the issue has led to the following circuit split:

A. The use of a defendant’s pre-arrest silence as substantive evidence of guilt violates the defendant’s right to silence. 

• Combs v. Coyle, 205 F.3d 269, 282–83 (6th Cir. 2000)

• United States v. Burson, 952 F.2d 1196, 1201 (10th Cir. 1991)

• Coppola v. Powell, 878 F.2d 1562, 1568 (1st Cir. 1989)

• United States ex rel. Savory v. Lane, 832 F.2d 1011, 1017 (7th Cir. 1987)

• United States v. Velarde-Gomez, 269 F.3d 1023, 1036 (9th Cir. Cal. 2001)*

B. The use of a defendant’s pre-arrest silence as substantive evidence of guilt does not violate the defendant’s right to silence.

• United States v. Zanabria, 74 F.3d 590, 593 (5th Cir. 1996)

• United States v. Rivera, 944 F.2d 1563, 1568 (11th Cir. 1991)

*The court’s opinion in Hall v. Bell cites a Ninth Circuit case for its holding that the use of “pre-arrest silence as substantive evidence of guilt does not violate the privilege against self-incrimination.” Case No. 10-CV-10438 (E.D. Mich. Aug. 3, 2012) (citing United States v. Oplinger, 150 F.3d 1061, 1066-67 (9th Cir.1998)). It’s worth noting, however, that the Ninth Circuit sitting en banc explicitly overruled Oplinger in United States v. Contreras, 593 F.3d 1135, 1136 (9th Cir. 2010) (en banc). The Ninth Circuit has actually taken the opposite position on the issue. See United States v. Velarde-Gomez, 269 F.3d 1023, 1036 (9th Cir. 2001) (“We hold that the district court erred in allowing comment on Velarde’s post-arrest, pre-Miranda silence.”).

The presence of guns is what makes domestic violence so deadly. The American Judges Association reports that, “If the abuser has access to a firearm, it is far more likely that homicide will indeed be the result. Research shows that family and intimate partner assaults involving firearms are 12 times more likely to result in death than those that do not involve firearms. Approximately two-thirds of the intimate partner homicides in this country are committed using guns.”

For a more complete picture of what weapon is used in homicides generally, the FBI has a report. It shows:

“Can Forgiveness Play a Role in Criminal Justice?”

Paul Tullis has  this lengthy article in  The New York Times Magazine. It is a compellingly sad case about a young man who shot and killed his fiance and how her parents reacted.

Andy Grosmaire, Ann’s father, stood beside his daughter’s bed in the intensive-care unit of Tallahassee Memorial Hospital. The room was silent except for the rhythmic whoosh of the ventilator keeping her alive. Ann had some brainstem function, the doctors said, and although her parents, who are practicing Catholics, held out hope, it was clear to Andy that unless God did “wondrous things,” Ann would not survive her injuries. Ann’s mother, Kate, had gone home to try to get some sleep, so Andy was alone in the room, praying fervently over his daughter, “just listening,” he says, “for that first word that may come out.”

Ann’s face was covered in bandages, and she was intubated and unconscious, but Andy felt her say, “Forgive him.” His response was immediate. “No,” he said out loud. “No way. It’s impossible.” But Andy kept hearing his daughter’s voice: “Forgive him. Forgive him”

Professor James Gibson has been a prolific author about judicial campaigns and has an interesting article in Campaigns & Elections. The article begins as follows,

How dangerous is campaign activity to the legitimacy of American courts? Here is what one of the most prominent analysts of campaigning and elections predicted back in 2002:

“The spread of negative campaigning in judicial races is likely to have adverse consequences for the court system,” Shanto Iyengar wrote in an Indiana Law Review article. “The motives of judicial candidates will be cast into doubt, and public esteem for the judiciary will suffer. Not only will candidates for judicial office be equated with ordinary politicians, but the impartiality, independence, and professionalism of the judiciary will also be called into question. Large-scale advertising in state judicial elections will further politicize state courts in the eyes of the public.”

If this scenario did indeed come to pass, the American state judiciaries—the workhorse of litigation in the United States—would be seriously undermined and compromised. Because the empirical evidence necessary to substantiate these fears is so limited, this study was conceived and executed. What follows is an excerpt from my forthcoming book, “Judicial Elections: The Surprising Effects of Campaigning on Judicial Legitimacy.” My goal was to examine the consequences of electoral activity with a research design tailored to answer some of the key empirical questions about elections and legitimacy.

 

For the full article see: http://www.campaignsandelections.com/magazine/us-edition/346962/do-judicial-elections-really-stink.thtml

In many states there are few restrictions on judges participating in plea bargaining. Those states essentially treat judicial participation much like they do when judges try to help parties settle civil or family law matters. Even with the advent of alternative dispute resolution there remain critics of judges who are not adept at fostering settlement of cases. Yet, when it comes to criminal law there is a distinctly different attitude. Federal judges by and large do not participate and there are states that take a similar approach. Now the United States Supreme Court will, at least for federal courts, give some guidance.

The Justices agreed to hear an appeal by the federal government in United States v. Davila (12-167), testing what the remedy is to be in a plea-bargained criminal case when a federal judge had some role leading up to agreement on the plea deal.  The Eleventh Circuit Court ruled that, if the judge (in this case, a magistrate judge) has any role whatsoever in the plea talks, the guilty plea that resulted must be thrown out.   The government petition argued that the guilty plea should be overturned only if the judge’s participation had resulted in prejudice to the accused.

There is no better source for keeping up with the United States Supreme Court and few commentators as thoughtful as Lyle Dennison. His post on Missouri v. McNeely’s oral argument is first rate.

“Even allowing for the reality that what is said at a Supreme Court hearing does not necessarily dictate the outcome, now and then a case comes along where the Justices join so obviously in a common pursuit of a compromise that little suspense remains.  That happened on Wednesday, in the case of Missouri v. McNeely (docket 11-1425), when it seemed quite predictable that the Court is not going to let police across the nation order — on their own authority — the taking of blood samples from those suspected of drunk driving.   Police, it would appear, are at least going to have to try to get a search warrant, even though they sometimes will be allowed to do without one.”

See: http://www.scotusblog.com/2013/01/argument-recap-compromise-on-dui-blood-tests/#more-157395.

On January 14th the United States Supreme Court will hear oral argument on  whether  Harris v. United States, which held  that the Constitution does not require facts which increase a mandatory minimum sentence to be determined by a jury, should be overruled. Some commentators suggest this case is potentially the most significant criminal law case of this term.

Alleyne v. United States (docket 11-9335), was an otherwise unremarable case involving a robbery of a convenience .    Alleyne got eighty-four months added to his basic sentence for the robbery, on the theory that he would have known that his accomplice in the robbery would wield a gun as they carried out the robbery.  The added sentence was based upon the finding by the judge, not the jury, that Alleyne would have known about the plan to “brandish” a gun — a factor that leads to a mandatory minimum sentence beyond a basic sentence for the crime itself.

The Fourth Circuit decision which is the subject of the appeal is remarably brief:

“Alleyne’s final appellate argument is that the district court erred by holding him responsible at sentencing for brandishing a firearm. The court’s finding elevated Alleyne’s mandatory minimum sentence for the firearm conviction from five years to seven years pursuant to 18 U.S.C. 924(c). We review a district court’s factual findings at sentencing for clear error.” United States v. Pauley, 289 F.3d 254, 258 (4th Cir. 2002).

We first note, as Alleyne has conceded, that Supreme Court precedent forecloses any argument that Alleyne’s constitutional rights were violated by the district court’s finding that he was accountable for brandishing the firearm despite the jury’s finding that he was not guilty of that offense. Harris v. United States, 536 U.S. 545, 556, 122 S.Ct. 2406, 153 L.Ed.2d 524 (2002). We do not find the district court’s finding otherwise clearly erroneous.

Accordingly, we affirm the district court’s judgment. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. “

This week the United States Supreme Court will hear oral argument on a case arising from Missouri on whether a law enforcement officer may obtain a nonconsensual and warrantless blood sample from a drunk driver under the exigent circumstances exception to the Fourth Amendment warrant requirement based upon the natural dissipation of alcohol in the bloodstream.

The Missouri Supreme Court decision said in part,

“PER CURIAM. Tyler McNeely (Defendant) refused to consent to an alcohol breath test or a blood test after he was arrested for driving while intoxicated. The arresting patrolman, without seeking a warrant from a judge, ordered a medical professional to draw Defendant’s blood. The trial court sustained Defendant’s motion to suppress the results of the blood test as the nonconsensual and warrantless blood draw was a violation of his Fourth Amendment rights.

The issue before the Court in this interlocutory appeal is: Under what “special facts” is a nonconsensual and warrantless blood draw in a DWI case a reasonable search and seizure under the Fourth Amendment?

This Court recognizes the two competing interests involved in answering that question, namely, society’s interest in preventing the harms caused by drunken driving and an individual’s Fourth Amendment right to be secure in his or her person and to be free of unreasonable searches and seizures.

The United States Supreme Court addressed this issue in the landmark case of Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). There, the Supreme Court provided a limited exception to the warrant requirement for the taking of a blood sample in alcohol-related arrests. Id. at 772, 86 S.Ct. 1826. The holding, which was expressly limited to the facts of that case, ultimately rested on certain “special facts” that might have led the officer to reasonably believe he was faced with an emergency situation in which the delay in obtaining a warrant would threaten the destruction of evidence. Id. at 770-71, 86 S.Ct. 1826. The threat of evidence destruction was caused by the fact that the percentage of alcohol in a person’s blood begins to diminish shortly after drinking stops and because time had to be taken both to investigate the accident scene and transport the defendant to the hospital. Id. These events left no time for the officer to seek out a judge to secure a search warrant. Id. Schmerber held that these “special facts” permitted a warrantless blood draw. Id., at 771, 86 S.Ct. 1826.

The patrolman here, however, was not faced with the “special facts” of Schmerber. Because there was no accident to investigate and there was no need to arrange for the medical treatment of any occupants, there was no delay that would threaten the destruction of evidence before a warrant could be obtained. Additionally, there was no evidence here that the patrolman would have been unable to obtain a warrant had he attempted to do so. The sole special fact present in this case, that blood-alcohol levels dissipate after drinking ceases, is not a per se exigency pursuant to Schmerber justifying an officer to order a blood test without obtaining a warrant from a neutral judge. The judgment of the trial court is affirmed”

See http://www.supremecourt.gov/Search.aspx?FileName=/docketfiles/11-1425.htm