Ice is Here--and Chills the Spirit

Oregon v. Ice was decided today. (Here at Cornell). 5-4 with a wacky split to say that juries do not need to find facts necessary to impose consecutive sentences. Roberts, Scalia, Souter, and Thomas were the four.

I haven't read the opinions. The result is certainly disappointing, especially when you consider how close--and weird--the vote was. I thought Ginsburg and Stevens were true Blakely believers. (We know after Booker that Justice Breyer is a traitor to the cause.) And maybe they are and just don't think the principle applies to consecutive sentences.

Although I don't blog about my own cases, I will say that I am going to have to abandon some pending post-conviction claims based on Blakely and consecutive sentences.

This leaves two Blakely shoes to drop--well, a boot and a slipper. The boot is retroactivity--full, to the beginning of time, or merely to Apprendi. ("As our precedents make clear . . ." Justice Scalia wrote in Blakely.)

The slipper is whether juvenile adjudications without jury trials are "prior convictions." Most courts seems to have said, "Yes." I do not think that can possibly be correct and that the majority of courts that take the position are dodging Blakely similarly to the way they dodged Apprendi for years--except Kansas.

More about Ice after I actually read the opinions.

Quote of the Day: On Mediocrity & the Supreme Court

There are a lot of mediocre people in this country, and mediocrity should be represented on the Supreme Court.

-Senator Roman Hruska (R-Nebraska), in defense of Nixon's nomination of G. Harold Carswell

From Indiana Political Heroes by Geoff Paddock

Happy Halloween

From Zombie Cat

Oregon v. Ice (More): SCOTUSBlog's Take

After the oral argument in Oregon v. Ice, the case about whether Blakely is going to apply to consecutive sentences, SCOTUSBlog provided this summary of the argument.

Here is the intriguing paragraph for the fair folk of Indiana:

While the Court leaned noticeably toward the jury option, one potential question went unanswered in the argument Tuesday: would the jury have to have that role as a general constitutional proposition, or have it only in states that had laws requiring that multiple sentences for two or more crimes normally be served concurrently unless some added fact supported consecutive sentencing? Perhaps as many as 13 states have such laws, so if their existence was necessary for the jury to have the fact-finding task to make sentences consecutive, that would give such an expansion of Apprendi less impact. Oregon has that kind of law, but Justice Antonin Scalia suggested that it was “unusual.”

Nobody's ever claimed Indiana isn't "unusual." It's especially unusual in this context, because there is no statute requiring the finding of additional facts to impose consecutive sentences. That requirement came from the Indiana Supreme Court in the early 80's.

When is the Supreme Court going to take care of the other really big Blakely boot that has not yet dropped--retroactivity?

Related Links:

1. Prior post about Ice
2. Transcript of argument

New Blog on the Block: The Indiana Criminal Law Blog

Lorinda Youngcourt has started up a new blog dealing with Indiana criminal law: The Indiana Criminal Law Blog. It looks like it will contain case blurbs put together monthly by the Indiana Public Defender Council. Maybe it will have other goodies too.

Have a look. I'm sticking it into my feed reader and the blog roll.

Here's the link to the RSS feed.

Blakely & Consecutive Sentences: Oregon v. Ice

Oregon v. Ice was argued in the U.S. Supreme Court today. Does Blakely apply to consecutive sentences if the finding of additional facts are required to impose sentences consecutively?

The transcript of the argument is here (PDF). Doug Berman's take on the case is here. (Sentencing Law & Policy). Kent Scheidegger's take is on the argument is here. (crime & consequences).

I have not read the transcript yet. I am also agnostic on the subject.

Indiana still requires the finding of additional facts to impose consecutive sentences, even after the 2005 statutory amendments that did in Blakely's Indiana sojourn.

Smylie, of course, said that Blakely does not apply to consecutive sentences. So if Ice wins, what happens here? Probably almost nothing. That the Indiana Supreme Court will have gotten it wrong won't make much difference to almost all the Blakely claimants. Their cases are final. And as I am thinking about it now, I'm not sure how a Blakely claim regarding consecutive sentences can be revived either by post-conviction proceeding or by fed habeas. I'll have to think about that for a while more, though.

Of course, the game would change considerably if the Supremes got around to saying that Blakely was fully retroactive. In Indiana at least, it should be. Blakely raised the standard of proof for aggravating circumstances from practically nothing to beyond a reasonable doubt. That is, from my particular corn field, Blakely looks a lot like In re Winship for sentencing facts. That should get retroactivity for Blakely by even Indiana's version of Teague.

The Sunday (SPAM) Pickle

Anyone else get one of these?  I think it's hilarious.


FEDERAL BUREAU OF INVESTIGATION
ROOM 4-230, KALANIANAOLE FOB
300 ALA MOANA BOULEVARD HONOLULU , HAWAII 96850-0053
http://www.fbi.gov
Email:garrity.robertg.robert994@gmail.com
Robert J. Garrity, Jr Deputy Assistant Director,
Records Management Division FBI

Before the House of Represenatatives, Subcommittee on International Terrorism, Nonproliferation and Human Rights Los Angeles, California

 Attn: Honourable Beneficiary.

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 We wish to advise you that this is illegal and you should stop further communication with them forthwith because such an illegal act like this can lead to cancellation of your fund.

 We have been having so many complains from people who have been scammed around the world hence,after concluding in a meeting with members of the International Monetary Fund (IMF),United Nations(UN) and all the presidents in africa and UK concerning these, we came to a conclusion that every payment will be made through the Citi finance Int'l Corporation,New York. We also concluded on the use of Swift cable Wire Transfer as the only direct means to pay all beneficiaries.

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 1. Full Name
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CONTACT: Dr.John Phillips
HEAD OF COMMUNICATION
DEBT SETTLEMENT COMMISSION
United Nations Association of the UK
3 Whitehall Court,
London SW1A 2EL.
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 The DEBT SETTLEMENT COMMISSION has been mandated to issue out your payments for this fiscal year 2008. Also for your information, you have to stop any further communication with any other person(s) or office(s) who claim that to be established agents using it to defraud innocent people worldwide.This is to avoid any hitches in receiving your payment.

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Faithfully,

MR .ROBERT S. Garrity, III
 FOR CORPORATE AFFAIRS
 FEDERAL BUREAU OF INVESTIGATION (FBI  Honolulu))
 Los Angeles , California
 UNITED STATES OF AMERICA

What I Learned Today: Strangulation as a Class D Felony

I had no idea that there was a special crime of "Strangulation." But here it is--Indiana Code § 35-42-2-9(b):

A person who, in a rude, angry, or insolent manner, knowingly or intentionally:
(1) applies pressure to the throat or neck of another person; or
(2) obstructs the nose or mouth of the another person;
in a manner that impedes the normal breathing or the blood circulation of the other person commits strangulation, a Class D felony.

Subsection (a) exempts "medical procedures." So a doctor can strangle you in a rude, angry, or insolent manner as part of a medical procedure?

From Autuan M. Leanyear v. State, Court of Appeals No. 02A03-0806-CR-268 (Ind. Ct. App. 8/27/08) (NFP). (If you read the case, there might have been a pretty good claim that there was no evidence that the "strangulation" was rude, angry, or insolent.)

Why There Are Lawyers: "Custody" vs. "Confinement"

More language fun, this time from the 7th Circuit.

It is fundamental that to be eligible for habeas relief, one must be "in custody." After all, a habeas petition is a request that one's jailer produce one's body (the corpus part) before the court (instead of the king now) and justify the detention. It is also fundamental that "custody" includes parole or probation.

For the purposes of Federal Rule of Evidence 609(b) and the 10-year limit (absent extreme justification) on the use of prior convictions to impeach, however, it works a little differently. The 10-year limit runs from "the date of the conviction or of the release of the witness from the confinement imposed for the conviction, whichever is the later date . . . ."

The 7th says (in a circuit first-impression case) that once released on probation, one has been released from confinement for Rule 609(b) purposes. But while on probation, for habeas purposes, as I said above one is still "in custody."

I guess it's the difference between Tyson's chickens and the free-range variety.

United States v. Rogers, Case No. 06-6730 (7th Cir. 9/4/08)

Comment Bait: "Advertising Material" vs. "Legal Advertisement"

Indiana Lawyers have to include the words "Advertising Material" in their ads. So a couple of lawyers screwed up and put "Legal Advertisement" in their ad instead of the magic words. And they sent a copy of the ad to the Disciplinary Commission to boot, as they were required to do. The lawyers even corrected the mistake four years ago.

The Indiana Supreme Court dings the lawyers in this case with a public reprimand for this in part, saying that "[u]se of the phrase Legal Advertisement' may create the impression that the Commission or some other body had reviewed it and found it to be 'legal.'"

Maybe under an ad for a chiropractor. The only possible double meaning I perceive under an ad for a lawyer would be that the ad is legally permitted. Some people might think lawyers are not permitted to advertise, since once upon a time, in many jurisdictions at least, they weren't. (Ahh, those were the days, right?)

It seems to me that only the Indiana Supreme Court and the lawyers in the Disciplinary Commision itself could think that "Legal Advertisement" might refer to the Commission or some such entity.

Anyone with a different take?

Quote of the Day: About Suicide Clauses in Insurance Contracts

"[A]n insured is not 'performing' a life insurance contract by not committing suicide." Dean Officer v. Chase Ins., Case No. 07-2826 (7th Cir. 9/3/08) (Judge Tinder), slip op. at 12.

More about Woods : a Correction

I was incorrect the day before yesterday in this post about Woods, the decision from the Indiana Supreme Court of a couple of days ago. Someone more knowledgeable has pointed out to me that post-conviction relief is available after probation revocation proceedings. Ind. Post-Conviction Rule § 1, 1(a)(5).

The same more knowledgeable person also had a peek into the Marion County online docket: Woods was represented by counsel at the revocation hearing.

Forgery: Strict Liability for Presenting a Forged Check? (WILTD)

What I learned today:

1. Someone steals a blank check.
2. Sometime later, someone buys a couch from me (I say) using the stolen, now-forged check.
3. Three months after the check was stolen, I open a bank account using the forged check.
4. That I present the forged check for payment, without more, is enough to support a conviction for forgery.

Gina Williams v. State, Court of Appeals No. 49A02-0801-CR-44 (Ind. Ct. App. 8/27/08).

News to me. And Judge Najam's opinion cites a number of cases older than dirt for the proposition. Slip op. at 9-10. Maybe in this case, it was just that the stolen check was number 1050 and made out for $1050. (Jeesh.)

Maybe I need to create a new Dickensian category of post: "The Law is an Ass." And in this case, it seems to have been so for a long time.