Ordinary people

I know this is just a silly little blog with cartoon drawings in the header. I know I talk about my dog and shoes and sports too much to be taken too seriously. I know it's too much to hope that anyone associated with the United States Supreme Court actually reads this.

But for this one post, I really hope they do. Because the justices who make the law all the rest of us live with need to see this video.

In both 4th and 5th Amendment jurisprudence, the concept of what the ordinary person would feel free to do factors in. Would the ordinary person feel free to disregard a police officer? To walk away? To invoke the right to silence in the face of police questioning?

In case after case, I have been frustrated by how willing SCOTUS and therefore lower courts are to ascribe to ordinary citizens rather extraordinary abilities to resist the power of a person in a police uniform, complete with badge, handcuffs, and handgun at the ready. According to a pile of case law, ordinary people in the US feel free to walk away from uniformed officers in all sorts of circumstances. What I know from this is that the justices of the United States Supreme Court don't often find themselves getting pulled over by cops or being stopped on the sidewalk by cops or opening their doors to cops or being asked questions in interrogation rooms by cops.

The judges and justices who makes these decisions should be confronted with the reality of what it's like when ordinary people are confronted by police. In this video, a young woman was driving home to her husband or boyfriend and their 2 week old child. She was pulled over for a broken headlight. Hardly a big, bad infraction. Usually the sort of thing a driver gets a warning for that can be wiped away if the driver shows up at the police station within the next 2 or 3 days with a fixed light. But ordinary people get very nervous when they're pulled over. Heck, this nervous person breaks into a cold sweat when she gets a phone call from a number she doesn't recognize because I always jump to the assumption I'm in trouble in some way. (I'm not, and I'm not sure what "trouble" I think I would be in anyway; it's a weird pathology I seriously need to get over.) But the point is nervousness isn't an unusual reaction to being confronted by uncertain situations.

This woman's nervousness seemed out of the norm to the police officer who pulled her over. So he assumed she was on drugs. To assess his assumption, he instructed her to lift up her shirt, pull her bra away from her body, and shake out the bra. While this was a big step up from conducting an invasive cavity search on the side of a highway, it's still pretty egregious. She wasn't exposed and she wasn't subjected to any physical search, but it was demeaning all the same. It's still something the officer had no business demanding the woman do. And it's still something the woman felt utterly powerless to resist. So now there is a dash cam video of this woman pulling her shirt up and shaking out her bra on the side of the road.

I hope the judges and justices who rule on criminal cases see this video. I hope they start to rule with an honest perspective on the authority uniformed police officers wield. Ordinary people don't feel free to walk away when a uniformed police officer is talking to them. Ordinary people don't feel free to disregard even obviously obnoxious commands by uniformed police officers. Ordinary people know that uniformed police officers have guns and handcuffs and are free to use them. Ordinary people don't want to be arrested or shot. So ordinary people comply. The fact that this very freaked out, very nervous, very ordinary young woman complied, though, does not make what happened to her a consent search. We need the judges who rule on these kinds of cases to understand that.

500

500 people is a lot of people. It's about 10 NFL teams. More people than get to be starters in the NCAA tourney. About twice as many people as I graduated from law school with. More people than my high school graduating class. More people than my college graduating class. My entire state agency doesn't employ close to that many people. Even the biggest airliners we fly on stop short of holding 500 passengers. 500 people is a lot of people.

As of 7:37 pm ET, 500 people is the number of people the state of Texas has executed since 1976.

It is a staggering number. Appalling. Horrifying. The state of Texas has intentionally ended the life of 500 living, breathing human beings. And that's only since 1976. You know they executed a lot of people before 1972 as well.

What are they getting for it? It certainly doesn't appear that they're running out of candidates for their death chamber, so I doubt they're making a big dent in their crime numbers. But they just keep killing people. After a while, it feels like they're just killing people to kill people.

If it ever seems like I pick on Texas too much, like I'm too harsh on that entire state, too easy to find fault with it, this is why. They just kill too damn many people.

Marketing 101

I have the pleasure of living near one of those churches with the signs out front. The messages are very occasionally advertising actual church business, like Vacation Bible School or special holiday services. But most often, they're that kind of punny or pithy message seemingly aimed at non-believers, trying to get us to come to the church. My dear friend and I love to drive by and read those messages, often sending those messages to each other if they really catch our fancy (meaning our funny bone).

Today's message:

"If you're dead and it's still hot, it's too late."

I kinda want to go find whoever is in charge of this sign and offer them some free marketing advice. I feel like I'm at least part of their target audience with this sign. So there's a part of me that wants to let them know how woefully off-the-mark they are if they really want to try to convince people to come to Jesus. Threats of burning in hell pretty much stop working to convert people once they get past age 10 or so. So telling people that they should come to worship your god because if you don't, said god will condemn you to an eternity of hell is not effective marketing. Maybe just focus on the love part, not the "or else" part.

But if I gave them advice, they might come up with better signs and then I'd lose my weekly chuckle.

One quick(ish) point on DOMA

There's one misconception that a lot of people are expressing about today's Defense of Marriage Act (DOMA) ruling, so I just want to set it straight briefly. Some are saying, "Huzzah! DOMA is dead!" Some are ruefully shaking their heads saying, "No, Section II is still barring full faith and credit for same-sex marriages." Section II is the provision that says states can refuse to recognize same-sex marriages lawfully entered into in other states.

The Huzzahers have the right idea. The rueful head-shakers shouldn't have expected a Section II win as that issue wasn't involved in the case at all. Invalidating one section of a statute almost never results in the entire large law being invalidated. But more importantly, Section II isn't the real reason why those states that ban same-sex marriages are allowed to refuse to recognize such marriages from other states. Section II was just a codification of existing interpretation of the Full Faith and Credit clause of the US Constitution.

This is kind of arcane legal stuff that maybe only hard core legal geeks have any idea about. Full Faith and Credit most traditionally applies to court judgments. If I have a money judgment against you in Kansas, you can't move to Missouri and think then you'll get out of paying it because Missouri will enforce that judgment for Kansas. That kind of thing. It has long been the law, though, that a state can't be forced to do things by other states that would violate that state's public policy. A lot of it comes down to the difference between court judgments and legislative enactments. Then there's the difference between recognition and enforcement. (As in a state that doesn't allow same-sex couples to adopt has to recognize the legal rights of parents who lawfully adopted children in a different state, but that state doesn't have to issue a birth certificate that would violate its own laws.) It's all very detailed and complex and I'm not well-enough versed in it to explain it very well.

The only thing any lay person really needs to know about all of this is that even without DOMA, states are free under current full faith and credit jurisprudence to refuse to recognize marriages performed in other states that are "repugnant" to their own state laws. At least there isn't any Supreme Court case that says they aren't free to do so.

In fact, I researched this recently as it relates to first cousin marriage. There are 3 states in this country that do not recognize any marriages between first cousins, regardless of where those marriages were performed. Just as an example. So same-sex marriages entered into in Iowa aren't the only marriages Arizona refuses to recognize. My cousin who lawfully married his cousin in a New England state had better not move to Arizona.

The point is that this scenario changing does not in any way hinge on Section II of DOMA. As it stands now, states are free to decide they will recognize same-sex marriages from other states. And as it stands now, the law surrounding full faith and credit does not require states to recognize such marriages if they don't want to. To change this, we need a broader discussion on full faith and credit and we need it to get up to the Supreme Court. DOMA doesn't even have to be involved for the full faith and credit issue to be challenged.

Or we could just get with the 21st century and get same-sex marriage legalized and recognized in every state already. That would take care of it, too.

Well that was interesting, Scalia

Everyone today is talking about the fact that both the federal benefits/definition of marriage provision of DOMA is unconstitutional and that Proposition 8 in California is dead.

From the perspective of an appellate lawyer who read the transcripts of the argument, the DOMA decision isn't at all a surprise. The writing was on the wall on that one at argument. The only justice we were iffy about was Justice Kennedy, but his questions/comments at argument assured me, anyway, that his vote was going to be on the right side. It's a somewhat straightforward decision, though I'm not convinced it had to stray so far into federalism, but I'll concede that's not an area of the law I'm an expert in.

Justice Scalia's dissent in the DOMA case was predictable, too. If you've read his previous dissents on similar issues, notably the 2003 sodomy case Lawrence v. Texas, you should have expected he would issue a rollicking dissent. He didn't disappoint, with a dissent as long as the opinion of the court. My sense of Scalia is that the less sound, rational basis he has for his ruling, the more he blusters. He blustered an awful lot in Lawrence v. Texas and he blustered a lot today. He didn't just bluster about one thing, either. First, he blustered about the Court even ruling on the case because there's no jurisdiction. There was some bluster aimed at the Obama administration for refusing to challenge the original district court ruling that was in the plaintiff, Edie Windsor's, favor. The best bluster, of course, was on the topic of same-sex marriage itself. There's a whole paragraph about overcooked loaves and bad recipes.

There's a really disingenuous argument that this will bring chaos for those same-sex couples who marry in one state and then move to a state that don't recognize such marriages. A) That chaos exists whichever way the DOMA federal benefits provision goes. You're marriage is valid in one state, not in the other, and the feds will go with one state or the other. B) There are other marriages already in existence, marriages between one man and one woman, that are recognized in one state and not in another. First cousin marriages are not ever recognized in three states. (No first cousin marriage jokes: I have a cousin who married another cousin, and they are both bright, educated people.) So some marriages are already in that limbo and the federal government does not collapse under the weight of the chaos. He's all sound and fury about how outrageous it is for the majority to suggest it is only animus against gays and lesbians that led to DOMA (as if he wasn't alive when DOMA was being debated and passed).

So what we (didn't really) learn (because we already knew) from this dissent is that Scalia doesn't like the gays and doesn't like anyone suggesting it's just animus on his part that he doesn't like them. He just gets to morally disapprove of them and so does the law and that's that.

All of which makes what happened in the Prop 8 case so very, very interesting. Because the effect of the Prop 8 ruling is that Prop 8 is unconstitutional. But SCOTUS didn't say that. The federal district court judge, in a ruling I blogged about here, found it unconstitutional. Then what happened is that the relevant state authorities declined to appeal that decision. (Unsurprising as the trial was thorough and roundly recognized as offering no legitimate basis whatsoever for Prop 8, establishing it was a pretty indefensible law.) So then private citizens who had been involved in passing Prop 8 stepped in and pursued the appeal. SCOTUS today decided that those people did not have standing as required by Article III of the Constitution, so the court couldn't rule on the merits of their petition. Neither could the Ninth Circuit. So Judge Walker's ruling is the final say on Prop 8. Prop 8 is dead. Same-sex marriage is good to go in California

And Scalia was in the majority! So Scalia who hates the gays and thinks that's a perfectly valid justification for anti-gay laws actually took part in paving the way for same-sex couples in the most populous state in the nation to marry at will. One thing I know about Scalia is that he can always get to the result he wants, so was this the only way he could get enough votes to avoid the result he really, really didn't want? Which makes me desperate to know what on earth the negotiations in the justices's chambers were like. What discussions were going on? What possible rulings were on the table? Was there some game of chicken between Ginsburg and Scalia? Was she saying give us Prop 8 or we'll go all the way on marriage equality? Were Breyer and Kagan reluctant to go that far and thus happy to go along with this punt on Prop 8 as it gets to the right result on that particular law?

The negotiations that go on behind closed doors at the Supreme Court to reach coalitions in particular cases can be the stuff of legends. The most famous example is what was done to achieve a 9-0 ruling in Brown v. Board of Education. Chief Justice Earl Warren recognized the significance of reaching a unanimous opinion and worked carefully to make sure he got one. Then there was the famous switch in time that saved 9. There doesn't seem to be too much of that kind of stuff taking place in the modern court. (Justice Roberts's switch on the Afffordable Care Act might be remembered.) They don't seem to do much to find areas of consensus; they just issue a series of 5-4 decisions.

So when we get an odd vote split like this one (5-4 though it is, it's an odd combination of justices on each side), it piques my curiosity on how exactly they got there. And what other possible decisions could have been reached. Was there a possibility of not getting a 5 vote majority if they didn't go with the Article III argument?

Justice Kennedy was in the minority, the group who would have moved on to the merits of the case, along with Sotomayor, Alito, and Thomas. Here's my theory. I've long thought Judge Walker's long, well-reasoned decision on the Prop 8 federal trial was written directly to Justice Kennedy. I think it was a thorough integration of Kennedy's rulings leading to the inevitable conclusion that same-sex marriage bans are unconstitutional. I am not the only court observer who saw it that way. I think Kennedy took that bait. I think he was itching to write a majority opinion granting marriage equality across the land. I think Sotomayor was ready to go with him. I suspect that some combination of Ginsburg (though I suspect not so much her), Breyer, and Kagan were a little more reluctant to go that far, so they were ok with the Article III out. But if Scalia had refused to go along with it, would those three have joined up with Kennedy and Sotomayor to give marriage equality proponents the decision they wanted?

Did Scalia just accept same-sex marriage in California to avoid it nationwide? I hope we get the story someday.

Chaos, thy name is the Texas Senate

You know how when you go to weddings that involve people you aren't all that close to, you secretly kind of think it would be kinda fun to see a wedding that went all south? Someone saying, "I object!" An ex running down the aisle at the last minute? No? Just me?

Well, ok, but surely you've seen the news coverage of some giant brawl in a foreign parliament (it's always parliaments) and thought what fun it would be to watch someone punch Paul Ryan in the face? Ok, not just me.

We kind of got something pretty close to that in Texas tonight (last night now). The Texas Senate had until midnight to vote on a wide-ranging (some, like me, might say draconian) anti-abortion bill that had already passed the House and would surely be signed by the Governor. So the last hope was a filibuster to kill debate. That filibuster had to last until midnight. Wendy Davis did her best, but the guy in charge of the Senate was pretty clearly going to kill her filibuster and get the bill to a vote tonight come hell or high water. (He'd said as much.)

It was all a fairly moot point, too, as the Governor could easily just call another special session which would be safe from a filibuster from a time perspective. The bill clearly has the votes in both houses, so why not just let Davis have her filibuster and move on? But, no. There were shenanigans. Parliamentary inquiries to eat up time. Claims that Davis broke the rules, all of which were upheld (wrongly in my view). The crowd (the vast majority of them were there to support Davis in the filibuster) erupted. More parliamentary inquiries. Some motions. A second attempt at filibustering that was also killed.

The best moment of the night was another female Democratic Senator, Leticia Van De Putte, making the most epically awesome parliamentary inquiry ever, "At what point must a female senator raise her hand or her voice to be recognized over her male colleagues?" (The chair had declined to recognize her for a motion, turning to a male Republican instead.)

Then came the crowd filibuster, the chaos, the inability of the Senate leader to conduct a roll call vote because no one could hear. Now there are Republican claims that a vote on the abortion bill was taken and it passed. Democrats are saying it wasn't taken until after midnight so it doesn't count. Chaos and disorder have taken over.

What started out as a rare, fun, and beautiful thing -- one person standing up for something she believes in, following a time-honored tradition that says it's her right to do so -- has turned into the most embarrassing spectacle in politics that I've ever witnessed. It got as close to the silly brawls I've seen in foreign parliaments as anything I've seen in American politics. I didn't actually see a punch, but I guess it'll do.

Still, it's a pretty sad statement on how far our political civility has devolved that we can't even agree on whether a bill has passed. It was an engrossing evening from my perspective. I do enjoy political theater. But maybe it would be better to live in a less politically dysfunctional atmosphere where order and civility actually reigned. As of an hour and a half after the midnight deadline, the Texas Senate still isn't quite sure whether the vote counts or whether they're adjourned. That's not a banner night for American government.

Atheists have beliefs, too.

I am an atheist. If you've been around here long enough, this isn't news to you. But it's probably also not news to you that one of the surest ways to offend me is to suggest that I don't believe in anything. One need not believe in a higher power, an all-mighty being, to have very sincere and deeply-held beliefs about the world. I've been asked (by someone I thought was pretty enlightened and educated) why I'm so opposed to the death penalty if I don't believe in any god. I was a little floored by that question because I didn't know that anyone really equated being an atheist with seeing life as one big hedonistic free-for-all where anything goes.

I believe in a lot of things. I have deeply-held beliefs about what is right and wrong, about how to treat my fellow humans, and how to treat dogs (especially red-headed cocker spaniels). I believe killing people is wrong, so I oppose the death penalty. And for myself, I oppose ever, ever handling a gun. I am that person who would be tortured for the rest of her life if I ever actually had to act in self-defense such that another person died. You can think that's silly, but that's how strongly I believe in not harming another human being.

Somehow, a few years ago I wound up researching a topic for a case that led me to the caselaw about conscientious objectors during the Vietnam War. (Stay with me.) I think I was researching the legality of removing prospective jurors from capital juries based on their religious opposition to the death penalty. I think I was looking for research on the idea that one's deeply held moral and philosophical views don't have to be tied to a particular religion to receive some respect under the law. Because, of course, my opposition to the death penalty isn't tied to any particular religion, but it is based on deeply-held moral and philosophical views that fill the same place in me that religious beliefs fill in those who subscribe to a religion.

This research didn't lead to any novel issues for any of my cases, but it did teach me that for US Supreme Court purposes, I was right: that the deeply-held moral and philosophical views of non-believers are respected by the law the same as the deeply-held moral and philosophical views of those who subscribe to particular religions. During the Vietnam War, many young men who were drafted objected, arguing that they were conscientious objectors whose deeply-held moral views did not permit them to take up arms. Young men who had life-long connections to the Quaker Church were being allowed to get out of combat roles without penalty. Young men who were just non-religious pacifists, though, were being imprisoned or otherwise penalized for their objecting. They were being denied protection as conscientious objectors. The US Supreme Court put an end to that. In a line of cases (the most cited of which is U.S. v. Welsh), SCOTUS said that the deeply-held moral and religious views of non-believers were also worthy of respect, saying in essence we can't let people whose sincere moral beliefs lead them to oppose taking up arms get out of combat roles if they can identify a particular religious text they follow but screw those whose sincere moral beliefs stem from something other than a religious text. The bottom line: atheists, too, can qualify as conscientious objectors. Woot!

(I never really worried about that what with not being subject to the draft and being female, but if pressed, I do think I would be able to find enough people who've known me long enough to say, "She really, really couldn't ever raise a weapon against another human being." I hope.)

So it was with this in mind that I read this story about an atheist applying for US citizenship. Margaret Doughty has lived in the United States for over 30 years. The application for naturalization requires applicants to pledge to bear arms in defense of the nation. (Those of us who are born here are never asked to pledge that, which is good for me. I defend my nation's founding principles every day, but not with a gun.) Doughty wrote a thoughtful answer that while the question didn't seem relevant to someone her age (64) and sex, she couldn't lie and had to say she wouldn't be able to hold bear arms. The response? The United States Citizenship and Immigration Services told her she needed to provide a letter from a church! That she belonged to! Ok, not a church: a nonviolent religious organization. She needed to prove that her conscientious objector status was due to religious beliefs.

Which means that after 40 years after Welsh (a 1970 case), officials of the US government are still instinctively discriminating against atheists, implicitly reacting from a view that deeply-held moral beliefs must be tied to a particular religion to be worthy of respect. Oy.

The good news is that the Humanist Legal Center took up Doughty's cause and wrote a sternly-worded letter on her behalf. (I kinda wish my area of law involved more sternly-worded letters because I would enjoy writing them.) In response, the pinhead bureaucrats who insisted she provide a religious affiliation to have her moral objections to war be respected backed down. Doughty's application for citizenship was approved today. So I extend to her the heartiest godless Huzzah I have.

And I would encourage those bureaucratic pinheads to remember in the future that atheists have morals and philosophical beliefs, too. Ours are as deeply-held and as worthy of respect as those of any religious persons. Oh, and would it kill you to know the law as it relates to your job??

A big win for the nation's defense bar. But did it have to take so long?

Work as a defense attorney long enough and you will eventually see an argument that you believe in, that you raised numerous times, that you repeatedly got shot down on, ultimately prevail. It's always a little bittersweet. Sweet in that you can say, "See?! I told you!!!" Bitter because even as lots of clients will benefit, you can't help but think about all the other clients who are stuck even though they raised the exact same issue in their case. Once the direct appeal is done, there's not much chance a court will revisit that particular defendant's case, even if we all now acknowledge that his sentence is unconstitutional.

On Monday, while the rest of the nation was focusing on the United States Supreme Court's ruling on the Arizona voter registration law (a totally predictable result, btw, because, duh, federal law trumps state law), criminal defense attorneys were paying far more attention to another case, Alleyne v. United States. I haven't caught any major media outlets even noticing this case, but it's going to affect a lot of sentences around the nation. Defense attorneys around the country have been making this argument for 15 years, so even those of us who weren't involved in this particular case feel a little bit like we won.

To understand the issue in Alleyne, it's necessary to go back a decade or two. Back in the day, the standard approach to criminal sentencing was to have indeterminate sentences. For a crime, say robbery, the legislature would prescribe a sentencing range from 5-20 years in prison. The district court would have wide discretion to sentence the defendant to anything within that range. Parole boards would decide when the defendant would be released from prison, which could happen anytime after he served the minimum number of years set by the judge.

In the '80s and early '90s, a push was made to alter the way we did sentencing. Why? Because it was becoming apparent that with this broad amount of discretion afforded to judges at sentencing, some factors that shouldn't be considered might have been creeping in. There were racial and gender and economic status disparities showing up. As you might expect, poor black men convicted of robbery were getting the high number while middle class white women were getting lower sentences. As just a very rough example. So a lot of jurisdictions switched to guidelines sentencing, or grids as we call them.

Under grid sentencing (and I'll explain in Kansas terms because, obviously, that's what I'm most familiar with), the judge has very little discretion. The severity level of the offense determines the defendant's vertical placement on the grid while his criminal history determines the horizontal placement. This lands the defendant in a particular box with 3 numbers. The judge has full discretion to sentence the defendant to any one of those 3 numbers of months. The difference is usually a matter of a few months between levels. The mitigated number for a level 3 felony with no criminal history is 55, the standard is 59 months, and the aggravated is 61. Those numbers increase quite a lot if you have any prior felony on your record.

Now, before 2000, these sentencing grids did allow for some leeway in a very specific set of circumstances. A prosecutor could seek an upward durational departure, asking for up to double the top number of the defendant's grid box (so up to 122 months for a level 3 with no criminal history). The legislature set out about 8 or 9 specific facts that could "aggravate" the crime and be found by a judge as grounds for going beyond the grid and sentencing the defendant to a longer term.

In 2000, though, the United States Supreme Court issued its landmark decision, Apprendi v. New Jersey. (Landmark to criminal lawyers, anyway.) The defendant in that case challenged these upward departure sentences, arguing that it violated his Sixth Amendment right to a jury trial by allowing a judge to find additional facts that would increase the defendant's sentence. Using the numbers I set out above, the argument goes that the jury's fact-finding authorizes at most a sentence of 61 months. Any facts that would be found to increase the sentence from 61 months to 122 need to be found by a jury.

The prosecution argued that not all sentencing factors need to be found by a jury. In my favorite Scalia quote ever (from a case applying the Apprendi rationale to death penalty cases), he rejected this distinction between sentencing factors and elements of the crime by writing it doesn't matter "whether the statute calls them elements of the offense, sentencing factors, or Mary Jane," those facts that increase the possible sentence must be found by a jury after the prosecution proved them beyond a reasonable doubt.

The Apprendi court agreed with the defense and Scalia, finding that any fact that increases the defendant's sentence has to be found by a jury. The end result of this in Kansas was that defendants could not receive upward durational departure sentences for several years because we had no constitutional statutory mechanism for imposing them. It took the state legislature a year or two to amend the upward durational departure statute so that the trial jury would stick around after the guilty verdict to consider aggravating sentencing factors claimed by the state.

The next argument that intrepid defense attorneys (including this one) pushed was that juries should have to find facts that increase the mandatory minimum, too. In Kansas, the standard sentence for first-degree murder is a life sentence with parole eligibility after 25 years. We then also have what's known as the Hard-50. If the prosecution gives notice that they intend to seek it, they can argue that one of the 8 or 9 statutory aggravating factors exists in a particular case and can ask the judge to say the defendant will not be eligible for parole for 50 years instead of the standard 25. Our argument has long been that even though the authorized sentence of life in prison is the same, there is a very real, functional difference between parole eligibility after 25 years and parole eligibility after 50 years. The US Supreme Court rejected the mandatory minimum argument about 2 years after Apprendi, in Harris v. US. The Court said the sentence authorized by a jury's finding was the maximum amount, so in the Hard-50 example, life. Since all first-degree murder defendants are eligible to be sentenced to life, the judge altering the mandatory minimum is ok.

Defense attorneys can be stubborn, though. Hard-headed, you might say. Bulldogs who don't take no for an answer. Most of the issues we have ultimately prevailed on are issues that we as a collective pushed for 10 years or more. Gideon was not the first guy to argue he had the right to a state-provided attorney. Miranda was not the first case where defense attorneys argued defendants couldn't be said to waive a constitutional right if they were never informed of that right. So we didn't give up on the mandatory minimum thing, even after Harris. I personally filed multiple petitions for certiorari to SCOTUS on that issue.

Last year, we all perked up when the Allenye petition was granted. Was the court finally going to say Harris was wrong? Or was the court going to tell us to give it up already?

Yesterday we got our answer. And we all said, "Huzzah!" Because SCOTUS finally, FINALLY said, yes, making a man serve an extra 25 years in prison before a parole board can consider releasing him does functionally increase the sentence such that it's a violation of the Sixth Amendment right to jury trial to have that increase be based on facts found only by a judge, not by a jury." Which ought to mean in Kansas there won't be any more Hard-50 sentences for some time until the legislature can catch up, amend the statute, and we start seeing cases the new statute can apply to. I wouldn't be surprised to see a prosecutor argue they can just have the jury find the aggravating factor, but as we learned in the post-Apprendi days, all sentencing procedures need statutory authorization. A statute that authorizes a judge to find an aggravating factor for Hard-50 purposes cannot be read to authorize a jury to make that finding.

Just in the last week or so, a murder conviction in Kansas made some national headlines. The prosecution in that case intended to pursue a Hard-50 sentence. I bet Nancy Grace et al will be heartily disappointed to know that's not going happen (or at least it shouldn't!). I know that there are defendants both in Kansas and around the nation who should benefit from this ruling. Not that the Hard-50 defendants here will necessarily get out of prison before serving 50 years, but at least they'll have that chance, some slim hope which makes all the difference in prison.

But I can't stop thinking about all those guys I filed cert petitions for. It's no comfort to them to go back now and say, "Hey, we really were right on that issue. But you don't get a new sentencing hearing. Sorry." It's hard to explain to them how it can be that our statute authorizing their sentence can be declared unconstitutional and yet their sentences, imposed under that statute, are still in place. It doesn't make sense. But at least going forward, no more defendants will be sentenced this way.

And the defense bar can move on to the next issue.

The Man of Steel is my homeboy

Want to know why you should root for the Royals?

Because Superman does.

Any team that's good enough for the Man of Steel ought to be good enough for you.

The car buying blues

My first car that was really mine was a Saturn SL2. It was red, of course, and I named her Scarlett. She wasn't necessarily the car I wanted. I had also test-driven a Pontiac Sunfire that appealed to me for its sportiness and pick-up. But it was only a 2-door and I tended to be the driver among our circle of friends. I knew my friends Carl and Dan wouldn't fit in that back seat and Nick and Andres wouldn't be much happier, so I bought the Saturn. It was pretty and shiny and red, so I did love it. But it always had air conditioning issues, which made me hate it in July and August.

Somehow I finished paying that thing off while I was in law school. I kept it for a few years after graduation, too. But after two and a half years of full-time employment, I was ready to buy a new car. A brand new car. My first ever no-one-but-me-has-ever-driven-it car. I looked at websites and researched and compared the red paint colors. I settled on a 2003 Honda Civic Coupe. I could get a 2-door car this time as I had long since moved away from both Dan and Carl. It was cute and sporty and very, very me. I got a sunroof. And my favorite feature of all: the in-dash 6 cd changer (yes, only 10 years ago was pre-smart phone mp3 ubiquity). Most importantly, the air conditioning worked every time. While her name was never as well-known and used as Scarlett's, she did have a name. Frankie.

I expected to drive that car to death. I thought I would put 250,000 miles on it. But it didn't have a great spring. After some warning lights, some rough drives, and one very bad day, I took it in for a diagnosis. And it was bad. Blown head gasket. Oil seal leak. Belts. Brakes. Struts. Everything on that car decided to crap out all at once. But I was only at 164,000 miles! And it's a freakin' Honda, for crying out loud! I don't like to deal with things. The uglier, more difficult the situation, the more likely I am to shut down and not deal with it. This car situation, so totally unexpected, was exactly the sort of thing I want to pretend isn't happening.

My parents happened to be out of the country for a while, so I was able to borrow my mom's car for a few weeks while pondering what on earth to do, and crying if anyone asked me what I'd decided. Spend $2,000 to fix this car up and drive it for another several years? Or buy a new one? Or just drive my mom's car and bury my head in the sand for a few more weeks?

Well, Mom reclaimed her car yesterday, so I couldn't bury my head too much longer. I gingerly drove my car to the gym this morning, and then drove to a dealership just to check out my options. Which is how I found myself 3 1/2 hours later driving home without my pretty red coupe and having spent $20,000 of someone else's money. Man, they'll loan money to just about anyone, won't they? This morning, I owned a car free and clear and hadn't made a car payment in 5 years. This evening, I owe an astounding amount of money and will be expected to hand over $300 each month for the next 5 years.

And now while I should be working, all I can do is sit on my couch, stare out the window at the shiny new not-red car on my driveway, and think, "What the hell have I done?" On the one hand, I can now drive to work every day without worrying that my car will die (as long as I make the payments and it doesn't get repo-d). On the other hand, I will be eating ramen in the dark for the next decade.



(Funny side note: in the midst of all of this, I learned that according to CarFax, my 10 year-old Honda that I drove off the lot with 30 miles on it had 2 owners, the first of whom had the car before it existed and for the first 5 years I owned it... Based on this first interaction with CarFax, I don't have a whole lot of faith in the accuracy of their reports. Happily Autocheck, the title, and common sense verified that, no, I had always owned the car.)

I hate this woman so much

If I ever watch Nancy Grace, it's at the midnight re-airing. And it's because I'm either working or completely unable to sleep (as opposed to my usual largely unable to sleep). Tonight, it's a lot of both. I figured since the announcement came out that the prosecution would, in fact, pursue a second death penalty trial against Jodi Arias, Nancy would want to chat about it. That or she would be talking about some new missing "tot" so I could dwell on how much I hate her use of that word. Watching this woman gets me fired up and helps me make strong arguments. Or it just distracts me when I'm in full on denial and procrastination mode.

Tonight's topic is indeed Jodi Arias. She is reporting that Arias is being sent to a state mental hospital for a competency evaluation. This isn't a terribly uncommon or surprising development. Being in jail facing the death penalty is one of the more stressful situations most death penalty defendants face, so it's pretty normal for a defendant to suffer some breakdown in mental functioning. Or at least for defense attorneys to worry about it.

Nancy keeps talking about how outrageous it is that Arias will escape death row and instead go to a cushy mental health facility. This woman is so awful! First, Arias isn't under sentence of death, remember? So she doesn't belong on death row. She's certainly not "escaping" from it. Second, a state mental hospital should never, ever be considered "cushy" by any sane, rational person. I am confident Nancy wouldn't be comfortable staying in this "cushy" setting. The facility in Kansas that handles convicts and criminal defendants for competency evaluations is not a nice place to be. There's no mistaking that it's prison. Since we're talking about Maricopa County here, one of the most draconian counties in all the land, I have a hard time picturing the corresponding mental health facility as some delightful resort and spa type place.

Why, why, why do I keep subjecting myself to this woman's particularly awful brand of mean-spirited, fact-free infotainment?? And why does this awful, horrid woman have a television show and get speaking engagements and I don't??

I knew they would, but I still hoped they wouldn't

The Maricopa County Attorney does intend to pursue a second death penalty trial against Jodi Arias. What a great, thoughtful, well-reasoned decision. They should definitely spend hundreds of thousands of taxpayer dollars to try to empanel a second jury for a second penalty trial. They should definitely pay for the time of prospective jurors and the unlucky schmucks they find who claim they can put their pre-formed opinions aside. They should definitely pay witness fees. They should use up another several weeks of court time, keeping the judge and her court staff from attending to the hundreds of other matters they have pending. And, of course, they should condemn the state to paying millions of dollars in extra appeal costs that will only exist if Arias is sentenced to death.

I mean, they could have made the decision to save millions of dollars. They could have decided that a murder conviction and life sentence actually will do. They could have been grown-ups about it, just said, "We tried to get a death sentence. We didn't win. We can live with that."

But no. They can't live with it. They have to win. They have to do everything they possibly can to get a death sentence. To kill this woman. Why I bet that right now, they're working, thinking what they can do differently to be sure they get to kill this woman this time.

They do remember that premeditated, intentional killing is wrong, right?


- Posted using BlogPress from my iPad

Just a quick rant

SEO is a bad word. (Ok, so it's not technically a word, it's an acronym, but it's easier to call it a word.) A four-letter word in my view. Nothing has led to more bad writing on the internet than search engine optimization. I understand that blogs and websites want to get their pages at the top of search lists, but oh my goodness, repeating the same phrase or keywords over and over and over just doesn't read well.

I have got to stay away from online articles about the Aurora, CO theater shooting. At least, I have got to stay away from the comment sections. The complete lack of compassion, sympathy, or understanding for those suffering from profound mental illness is heart-breaking. And sickening.

Mental illness is no excuse.

People with profound mental illnesses are rabid dogs, animals who should be put down.

The fact that a person suffers from mental illness is more reason to put him/her to death, not less.

A murderer should die whether he knew what he was doing or not.


It makes my heart hurt. It makes me hate people. I can't stand being confronted by the fact that I have to live in a society where mean-spirited, thoughtless jerks like that get to have a say in making the rules.

You know what they say about someone who represents himself...

I  know it's odd and frustrating to lay people that the suspect in the Ft. Hood shooting still hasn't gone to trial. It has been 3 1/2 years since the November 2009 shooting that killed 13 and wounded 30 others. But even within the military justice system, such is the way of death penalty litigation. If you want to kill a guy, you have to give him enough time to put together a defense case. And the suspect in that case, Major Nidal Hasan, was very seriously wounded himself, resulting in paralysis. Dealing with those injuries also set the trial back.

Now, the trial was set to start at the end of June. It's common for lots of motions to be decided at hearings in the weeks before a trial. In this case, the big motion that was ruled on today was Hasan's request to represent himself. I'm not well-versed in military criminal law, but I do know there are some differences from civilian justice. Not all rights are exactly the same because those who signed up for the military voluntarily signed up for slightly different rules. But in the regular world, if a defendant wants to represent himself in court, the trial judge has very little choice but to grant that request. The court can try to tell the guy it's a horrible idea, go into great detail about why it's such a stupid idea. But if the defendant meets rather low competency standards, the court can't deny the request. Deny the request and the remedy is a new trial. It's one of the very few appellate issues that are considered structural error, where if I show my client made a request to represent himself that wasn't honored, I don't have to show there was any prejudice. He just flat gets a new trial, regardless of the strength of the evidence against him or the thoughtfulness of the jury's verdict.

It appears that same standard applies in military justice because the judge overseeing the Hasan trial granted the defendant's request today. It still doesn't quite answer the question for me of whether the standard is quite the same as in civilian criminal court. I'll be watching curiously to see if Hasan can do something that will cause the district court to force counsel on Hasan after all. Many are concerned that Hasan will use the trial as a platform for airing his grievances against the US and his religious views that led him to commit the act he's accused of. Zacarias Moussaoui wanted to represent himself and filed lots of fun and interesting pleadings.

But so what if that is what he wants to do? Why not let him make a few odd speeches? Lots of criminal defendants have all sorts of grievances they want to air, conspiracy theories they want to put forward. Anyone who has done criminal defense for a few years has certainly had at least one client who insisted on filing his own motions filled with, umm, novel arguments. Why not let this guy have a little leeway, especially if it means less possibility of an appellate court overturning a conviction. I'm sure people would prefer it if he would sit down, shut up, and accept punishment already. But I appreciate the fact that we let even the wackiest, most difficult defendants their day in court.