Recently in Criminal Procedure Category

Guilty Pleas and Appeals

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The U.S. Supreme Court today decided Class v. United States, No. 16-424:

Does a guilty plea bar a criminal defendant from later appealing his conviction on the ground that the statute of conviction violates the Constitution? In our view, a guilty plea by itself does not bar that appeal.
Justice Breyer wrote the opinion of the Court.  Justice Alito dissented, joined by Justices Kennedy and Thomas, criticizing the majority for leaving a "muddle."
Apparently it can, according to this Washington Post article.  Still, by far the more frequent practice (on the rare occasions this is done at all) is to refer a contempt proceeding to the US Attorney for DC.

Some teasers from the piece:

[George Washington Adjunct Law Professor Randall] Eliason pointed to a May 2017 report from the Congressional Research Service that described an inherent power to hold people in contempt, meaning that it had the power to punish people for contempt even without that power being spelled out in the law. In fact, a long time ago, the House on several occasions tried -- and imprisoned! -- private citizens, and had that power upheld by the Supreme Court.

"Under the inherent contempt power, the individual is brought before the House or Senate by the sergeant at arms, tried at the bar of the body, and can be imprisoned or detained in the Capitol or perhaps elsewhere," CRS's Todd Garvey wrote. (Eliason notes that there is apparently no actual jail in the Capitol.)

"The purpose of the imprisonment or other sanction may be either punitive or coercive," Garvey continued. "Thus, the witness can be imprisoned for a specified period of time as punishment, or for an indefinite period (but not, at least by the House, beyond the end of a session of the Congress) until he agrees to comply."

Readers might think that I've finally gone over the edge by posting that the Justice Department can overrule the Supreme Court's holding in Miranda that, in order effectively to preserve the Fifth Amendment, police must give a specific set of warnings to a suspect in custody, on pain that any ensuing statement he gives will be suppressed even if the facts show it was voluntary.

And yes, I would have thought the idea of DOJ overruling SCOTUS was bonkers before I read the Volokh Conspiracy post by Prof. Will Baude of Chicago.  Prof. Baude, by the way, is widely and correctly recognized to be a brilliant mind and one of the future stars of legal academia.  He is also, I should add, not a captive of the Leftist Bubble currently ruling the roost there, a fair-minded and eclectic thinker, and a casual friend of mine.

His Volokh Conspiracy entry dealing with marijuana enforcement policy does not directly say that DOJ can overrule Miranda, to be sure, but his analysis leaves no doubt about it.

Short List from the Long Conference

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Today the U.S. Supreme Court announced the short list of cases it decided to take up during its end-of-summer Long Conference on Monday.  The long list of cases not taken up (meaning the lower court decision stands) will be announced when the Court opens its new term on the First Monday in October.

Criminal cases include several Fourth and Fifth Amendment claims, one on the "plain error" standard of review on appeal, and one on military commissions.

Miller and Apprendi

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As noted by Doug Berman at SL&P, yesterday the Pennsylvania Supreme Court decided the case of Pennsylvania v. Batts, No. 45 MAP 2016 (Pa. June 26, 2017). The court held that under the precepts of Miller v. Alabama and the Supreme Court's evolving Eighth Amendment juvenile jurisprudence, adolescents convicted of murder are entitled to a presumption of a sentence that includes parole. 

The Batts case is interesting reading on a number of fronts.  The court construes the Miller rule of permanent incorrigibility to be a finding that "there is no possibility that the offender could be rehabilitated at any point later in his life, no matter how much time he spends in prison and regardless of the amount of therapeutic interventions he receives, and that the crime committed reflects the juvenile's true and unchangeable personality and character."  If the rule is going to be the sky's the limit on possible interventions and the state must show no possibility of change whatsoever during a defendant's life, then this is a ruling that proscribes juvenile LWOP sentences outright.   It is also interesting to think of a sentencing decision based largely on a defendant's personality rather than his conduct (even more so given the Supreme Court's recent cert denial in Loomis v. Wisconsin). 
exposes the criminal defendant to a penalty exceeding the maximum he would receive if punished according to the facts reflected in the jury verdict
While researching something else, I ran across quite a good seven-page outline summarizing how the prosecutor conducts criminal investigations and the role of the grand jury.  It's available here.

Dead Criminals and Abatement

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What happens when a convicted criminal dies while his appeal is pending?  Matt Bonesteel has this article in the WaPo on the Aaron Hernandez case.  Massachusetts follows the traditional, but stupid, rule:

The chief legal counsel to the Massachusetts Bar Association tells the Boston Globe that Aaron Hernandez's murder conviction over the 2014 shooting death of Odin Lloyd will be voided after the former New England Patriots star was found dead in his prison cell early Wednesday morning.

Hernandez was in the process of appealing his conviction at the time of his death. Because of a long-standing legal principle called "abatement ab initio" -- meaning "from the beginning" -- a person's case reverts to its status at the beginning if they die before their legal appeals are exhausted.
Appeal is not a constitutionally required part of the criminal process.  There generally were no appeals in criminal cases at the time this country was formed.  In the original Judiciary Act of 1789, Congress provided that important criminal cases would be tried before three-judge circuit courts, and their judgment was final.  There was no appeal to the Supreme Court, and habeas corpus was not available to collaterally attack the judgment of a court of general jurisdiction.

Today, all states provide appeals, and for good reason.  But if the appeal is dismissed because the defendant dies, it should be dismissed leaving the trial court judgment intact, as most dismissals of appeals do, without this special rule for dead defendants.  After all, the vast majority of convictions are valid and are affirmed if the appeal runs its course.  Our law recognizes that it is better that ten guilty go free than one innocent be punished, but after trial the ratio is a lot higher than 10/1, closer to 100/1, and there is no issue of unjust punishment remaining anyway.

Miranda Warnings for Terror Suspects?

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Since the capture of Ahmed Khan Rahami for the weekend bombing in NYC that injured 29 people, it has become clear that Rahami is a Jihadist.  A couple of years ago, his father said point-blank that he was a terrorist; he has traveled abroad to become steeped in radicalism, and his social media writings suggest the typical Jihadist hatred for the United States.

For fifty years, we have been required to give Miranda warnings to suspected criminals undergoing custodial questioning.  The question is whether that requirement should be extended beyond the standard criminal to a man more appropriately looked upon as an enemy combatant.

I addressed this issue once before, discussing the underpants bomber captured at the Detroit airport.  Some readers have asked me to link that discussion, and I do so here.

Amending the Bill of Rights

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The WSJ has this editorial, titled Clinton to Madison: Get Me Rewrite.

"Today, I'm announcing that in my first 30 days as President, I will propose a constitutional amendment to overturn Citizens United and give the American people--all of us--the chance to reclaim our democracy," Mrs. Clinton said in a taped speech to the Netroots Nation conference of progressives. First 30 days? Who knew the 225-year-old First Amendment was in need of such urgent revision?
Is amending the Bill of Rights fair game?  How about getting rid of the defendant's privilege not to testify in a criminal case?  Can we give it the heave-ho?  Probably not.

But those who agree with Mrs. Clinton would say her amendment does not change the real First Amendment, just a misinterpretation of it by the Supreme Court.  Fair enough.  Let's have an amendment to scrape off all the barnacles attached to the criminal law and procedure provisions of the Bill of Rights that were not included in those amendments as originally understood.

First over the side is the Fourth Amendment exclusionary rule.  Miranda is next. 

Dump that stupid rule that the prosecutor cannot comment on the defendant's failure to testify.  Have you seen the prosecutor's closing argument in the BBC series Broadchurch?  Great fun.  Don't try this at home.  Almost makes you want to move to England.  Except for the wigs.
This morning, the U.S. Supreme Court decided three consolidated cases involving the implied consent laws that all 50 states utilize in their efforts to combat the serious problem of drunk driving.  The implied consent laws imply a lawfully arrested motorist's consent to chemical testing as a matter of law and the state uses the test results as probative evidence of intoxication in a subsequent DUI prosecution.  Some motorists, usually repeat offenders, refuse requests for testing because they know that the Blood Alcohol Concentration ("BAC") results would impose harsher penalties than that of simply refusing a test.  The standard legal consequence in most states for test refusal is the suspension or revocation of a motorist's driver's license.  A refusal can also be admitted as evidence of intoxication in a DUI prosecution.  Based on recidivist drunk driver statistics, it does not matter if they have a driver's license or not.  The suspension or revocation of a driver's license does nothing to stop a person from drinking and driving if that person chooses to get into a car and drive while intoxicated.

Thirteen states gave some teeth to their implied consent laws and made it a crime to refuse testing.


The United States Supreme Court issued three decisions today, none with major implications.

In Puerto Rico v. Sanchez Valle, No. 15-108, the Court decided that the "dual sovereignty" exception to the Double Jeopardy Clause does not apply to Puerto Rico.  That is, a person who has already been prosecuted for a crime by the United States (in this case, ending in a guilty plea) cannot be prosecuted by the Commonwealth of Puerto Rico for the same crime.  The Commonwealth, unlike like a State, is a creature of the federal government, not a separate sovereign.  As decided, the case is more about Puerto Rico's status than it is about the Double Jeopardy Clause.  Justice Ginsburg, joined by Justice Thomas, concurs but would undertake a broader reexamination of dual sovereignty, another blow to the simplistic, one-dimensional model of categorizing Justices.

Williams
v. Pennsylvania, No. 15-5040, involves Ronald Castille, the District Attorney of Philadelphia who became the Chief Justice of Pennsylvania.  As DA, he signed off on his office seeking the death penalty against murderer Terrance Williams.  The Court holds that his failure to recuse himself from the case as Chief Justice when it reached the Pennsylvania Supreme Court violated the Due Process Clause.  Opinion by Justice Kennedy.  Chief Justice Roberts and Justices Thomas and Alito dissent.

Court watchers will remember that in the first few years after Justice Kagan moved to the Court from the Solicitor General's office she recused in every federal case where her office had been involved, a large number of cases.

In Dietz v. Bouldin, No. 15-458, the court holds that a "federal district court has a limited inherent power to rescind a jury discharge order and recall a jury in a civil case for further deliberations after identifying an error in the jury's verdict."  Probably limited impact on criminal cases, but I thought it was worth noting here.

Speedy Trial Rights Post-Trial?

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The expression "Well, Duh!" has been out of vogue for many years, but every once in a while I wonder if we should bring it back.

The Sixth Amendment guarantees a right to a speedy trial.  Does that guarantee apply after trial, or after a person has waived trial by pleading guilty?  Of course not.  "We hold that the guarantee protects the accused from arrest or indictment through trial, but does not apply once a defendant has been found guilty at trial or has pleaded guilty to criminal charges," Justice Ginsburg wrote for a unanimous court in Betterman v. Montana, No. 14-1457, announced this morning.

The opinion notes that other provisions of the Constitution may provide protection from inordinate delay between conviction and sentence.  It certainly is unjust to hold a person longer pending sentencing than his sentence is likely to be.  But Betterman's lawyer did not bring the claim under the Due Process Clause or anything other than the Speedy Trial Clause, so that issue is not in the case.
The U.S. Supreme Court issued two criminal law decisions this week, neither of which is surprising or particularly controversial.

Monday, the Court decided Welch v. United States, No. 15-6418:

Last Term, this Court decided Johnson v. United States, 576 U. S. ___ (2015). Johnson considered the residual clause of the Armed Career Criminal Act of 1984, 18 U. S. C. ยง924(e)(2)(B)(ii). The Court held that provision void for vagueness. The present case asks whether Johnson is a substantive decision that is retroactive in cases on collateral review.
Answer: Yes.

Today, the Court decided Molina-Martinez v. United States, No. 14-8913, regarding what to do on appeal when the trial court messes up on the often complex Federal Sentencing Guidelines and nobody notices until the appeal.  The Court disapproved the Fifth Circuit's requirement that the defendant "must identify 'additional evidence' to show that the use of the incorrect Guidelines range did in fact affect his sentence."
Yesterday's big criminal law news was the U.S. Supreme Court's decision in Montgomery v. Louisiana.  See my prior post and today's News Scan.  However, the decision in Musacchio v. United States, No. 14-1095, is also worth noting.

A conviction can be reversed on appeal if the evidence at trial is clearly not sufficient to establish the elements of the crime.  In Jackson v. Virginia (1979), the Supreme Court made this a federal constitutional rule.  Suppose (1) the elements of a crime are A, B, and C; (2) the judge erroneously instructs the jury they must find A, B, C, and D; (3) on appeal the appellate court finds plenty of evidence to support elements A, B, and C but none on D.  Is that reversible Jackson error?  No.  Jackson concerns only what the elements the jury should have been instructed on, not what they were instructed on.

If the defendant didn't raise a statute of limitations defense at trial, can he raise it on appeal?  Not unless Congress has made the time limit jurisdictional, which it rarely does and did not do for the crime involved in this case.  How about the plain error rule?  No.  If the defendant does not bring it up, the failure of the trial court judge to do so sua sponte is not error, plain or otherwise.

That's the short version.  For a longer version, see Rory Little's post at SCOTUSblog.
Former USAO appellate chief turned National Review analyst Andy McCarthy uses the curious Dennis Hastert case to pull back the curtain on what is really going on with "sentencing reform."  He notes:

Mandatory minimum sentences and strict sentencing guidelines for serious offenses were enacted precisely because judges, often in collusion with prosecutors [Ed. note: and virtually always at the urging of defense counsel], were systematically releasing serious offenders, allowing them to continue preying on society. While the "man-mins" and guidelines helped dramatically reduce crime, the left-leaning legal profession agitated against them. One result is "fact" pleading -- the sort of shenanigans that we see in the Hastert case: a willfully false rendition of the facts in order to sidestep sentencing enhancements required by law.

That is what sentencing "reform" has in store for us. The proposals may call for careful judicial fact finding before a felon is released. But the law already calls for careful judicial fact finding when the felon is sentenced. What we frequently get, instead, is careful judicial evasion -- often aided and abetted, it must be noted, by the Justice Department. It may be that careful fact finding would result in the release of some prisoners who should be released; but the breed of "fact" finding we are apt to get from sentencing "reform" will result in the mass release of incorrigible, violent criminals.

McCarthy's article is a goldmine about how the federal criminal justice system works on the inside, and well worth your read.  Sentencing reform is getting as far as it is only because the public has no idea about how many breaks for criminals are already built into the system, though hidden from view.

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