Zambrana from the 7th: Say that again . . .

Here's something I don't think I've ever seen. In United States v. Zambrana, No 04-2311(7th Cir. 10/31/05), the district court suppressed evidence with a pretty extensive order; the government appealed; and the Seventh Circuit sends it back for a more definite suppression order--with a caveat that the parties and the district court shouldn't take the remand as an indication of any inclination on the merits.

The district judge was, apparently, in a prior incarnation, a police officer. The police officer who testified at the suppression hearing apparently taught classes on "pre- and post-stop indicators," that the district judge characterized as courses in "How to avoid the warrant requirement in searching a vehicle."

The Seventh Circuit opinion emphasizes the importance of what a police officer knows from his or her experience. In this case the testifying officer said that folks rarely "play down" their arrest records, as one of the suspects in this case did when asked about it. That seems unlikely to me.

But in any event, if a police officer testifies that X is the case in his experience, is that pretty much the end of the matter? How, in a suppression hearing, without extensive discovery, can any defendant challenge what an officer claims his or her experience has shown?

Maybe the theme for today is (ghostly) transparency, discussed by Doug Berman at SL&P in this post about a per curiam opinion in Eberhart v. United States, No. 04-1538 (U.S. Oct. 31, 2005), reversing the Seventh Circuit on a procedural issue.

I find this case strange.

SCOTUS says "Boo!" to Indiana (and Washington).

The Supreme Court both tricked and treated Indiana today. The trick: it denied cert. in Smylie. But for all the docket action--and inaction by the Indiana AG--that was probably a foregone conclusion. Jaramillo is set for conference November 10th. (Earlier posts about Jaramillo here, here, here, and here, in reverse chronological order.)

The treat: it granted cert. in Hammon, an Indiana Supreme Court Crawford decision. Hammon's going to be argued together with Davis v. Washington (dissenting opinion here.) The heart of the majority Davis opinion from the Washington Supreme Court is the following:

Under the facts of the present case, McCottry called 911 because of an immediate danger. There is no evidence McCottry sought to "bear witness" in contemplation of legal proceedings. Nonetheless, certain statements in the call could be deemed to be testimonial to the extent they were notconcerned with seeking assistance and protection from peril. However, the information essential to the prosecution of this case was McCottry's initial identification of Davis as her assailant.

. . . .

In this case, the officers arrived four minutes after McCottry's 911 call and observed and documented her fresh injuries with photographs that were introduced into evidence. The portion of McCottry's 911 call that
identified Davis as her assailant was nontestimonial and properly admitted.

This is what Justice Boehm wrote in Hammon that lines up with Davis:

Despite the absence of findings, we think the undisputed facts are sufficient to determine that the initial exchange between Mooney and Amy fell into the category of preliminary investigation in which the officer was essentially attempting to determine whether anything requiring police action had occurred and, if so, what. Officer Mooney, responding to a reported emergency, was principally in the process of accomplishing the preliminary tasks of securing and assessing the scene. Amy’s motivation was to convey basic facts and there is no suggestion that Amy wanted her initial responses to be preserved or otherwise used against her husband at trial. Accordingly, her oral statement was not testimonial.

My guess is that there's going to be a Scalia opinion saying that statements to the police, including 911 calls, are testimonial, period. Crawford was a 7-0 opinion, with Chief Justice Rehnquist writing an opinion concurring in the judgment joined by Justice O'Connor. Having jettisoned Ohio v. Roberts in Crawford, I don't think the Crawford majority--everyone that we know about--is going to go for the attempts by state courts to divine the subjective intents of police officers and complaining, non-appearing witnesses. I think we'll have another actual rule when Davis and Hammon are done.

The Davis docket is here; the Hammon docket is here.

Blakely Retroactivity: Jacobs and Johnson and Jones, Oh My!

I am off to a long-delayed / awaited post-conviction hearing tomorrow down on the Ohio River. Before leaving, though, I thought I'd get out the word about three blockbuster cases from the Indiana Supreme Court last week. Actually, Jacobs is the lead case, and Johnson and Jones are merely companion cases applying what Jacobs decides. What Jacobs decides is that Ross v. State, 729 N.E.2d 113 (Ind. 2000), which involved interpreting various sentence-enhancing statutes, should be applied retroactively. It should be applied retroactively, because Teague (adopted by the Indiana Supreme Court for state retroactivity analysis) only applies to new rules of criminal procedure. Ross interpreted or re-interpreted what the court concluded were substantive criminal statutes, and so Teague doesn't apply at all.

Here is what what the Indiana Supreme Court said in Jacobs constitutes a substantive rule:

Substantive law, on the other hand, is broadly defined as the law that “declares what conduct is criminal and prescribes the punishment to be imposed for such conduct.” Wayne R. LaFave Substantive Criminal Law §1.2 (2d ed. 2003). In federal habeas, a substantive rule is one that “alters the range of conduct or the class of persons that the law punishes.” Schriro, 542 U.S. at __, 124 S.Ct. at 2523. This understanding of substantive rules in the habeas context suggests that substantive rules are those that address the criminal significance of the underlying prohibited conduct. The Wisconsin Supreme Court summarized the meaning of substantive rules in In re E.B. by saying that “substantive law is that which declares what acts are crimes and prescribes the punishment therefore.” 330 N.W.2d at 591. See also, In re Shane B, 7 P.3d at 97 (“In the criminal context, substantive law ‘either defines a crime or involves the length or type of punishment.’”)(quoting Lamb v. Kansas Parole Bd., 812 P.2d 761, 764 (Kan. Ct. App. 1991)); State v. Sutherland, 804 P.2d. 970, 977 (Kan. 1991).

In Bousley, the Supreme Court explained the distinction between substantive and procedural rules in light of the principles underlying the decision in Teague. The Court noted that the foundation of Teague is the notion that:

one of the principal functions of habeas corpus [is] to assure that no man has been incarcerated under a procedure which creates an impermissibly large risk that the innocent will be convicted. Consequently, unless a new rule of criminal procedure is of such a nature that without [it] the likelihood of an accurate conviction is seriously diminished, there is no reason to apply the rule retroactively on habeas review. By contrast, decisions of this Court holding that a substantive federal criminal statute does not reach certain conduct, like decisions placing conduct beyond the power of the criminal law-making authority to proscribe, necessarily carry a significant risk that a defendant stands convicted of an act that the law does not make criminal.

Bousely, 523 U.S. at 620 (alterations in original) (internal citations omitted). Considering that the underlying goal of Teague, as expressed in Bousley, is to ensure that an individual is not unjustly confined for actions that are not criminal, substantive laws are properly characterized as those rules that directly alter either the nature of the crime in question, or the ability of the legislature to criminalize certain conduct. See, Bousley, 523 U.S. at 620-21; Lagundoye, 674 N.W.2d at 95-99; In re E.B., 330 N.W.2d at 584.

. . . .

Considering these cases, it seems that in context of post-conviction relief, substantive rules should be considered those that either define criminal behavior itself, or define the penalties applicable to that behavior.

Although the question is a close one, we conclude that our decision in Ross falls more fittingly into the substantive category. Ross made clear that a material element of Indiana’s general habitual offender statute, section 35-50-2-8 of the Indiana Code -- that an individual could be punished as a habitual offender only if convicted of a current felony and two prior unrelated felonies -- could not be satisfied if the current felony was a misdemeanor handgun offense already enhanced to felony status under section 35-47-2-23(c)(2)(B). Ross, 729 N.E.2d at 116-17. Although Ross did not make legal what was illegal, or vice versa, our statutory interpretation led us to the conclusion that the legislature did not intend to enhance the same handgun offense twice in the same proceeding. This seems like the sort of subject matter that substantive law concerns itself with: “what conduct is criminal and [what is] the punishment to be imposed for such conduct.” 1 Wayne R. LaFave, Substantive Criminal Law §1.2 (2d ed. 2003).

Slip op. at 6-7.

If one places the above beside Justice Scalia's discussion of 17-element robbery charges in Blakely, it is hard not to conclude that Blakely or Apprendi ("as our precedents make clear") announced a new substantive rule not subject to Teague in either state or federal court.

Of course there's Summerlin (a.k.a. Schriro in Jacobs) to deal with. And it is interesting that even the four dissenters in Summerlin did not take the approach that Ring announced a new substantive rule. But Ring merely dealt with the Sixth Amendment; Blakely packs the double wollop of the Sixth and Fourteenth Amendments and, on one view, at least, does not merely address who decides, but also what is to be decided--robbery now may have 17 elements instead of 3.

Time to litigate.

Jaramillo Cert. Reply & Was Apprendi really from Indiana?

A volunteer elf has sent me an HTML version of the State's cert. reply in Jaramillo. Smylie is set for conference (again?) on October 28th; Jaramillo has not yet been scheduled.

The AG's Jaramillo reply is brief and essentially accuses Jaramillo of making a sneak attack on Almendarez-Torres via the Double Jeopardy Clause instead of the Due Process Clause. As the reply points out, the Court would have to take two steps at once to grant Jaramillo relief: first it would have to overrule Almendarez-Torres, saying that prior convictions are now subject to Apprendi and Blakely; second, it would then have to say that prior convictions are the effective equivalent of elements and that, therefore, retrial after a failure to convict because of insufficient evidence bars retrial. Whether that really is two steps, though, is an interesting question. If Almendarez-Torres is overruled and even prior convictions become the functional equivalent of "traditional elements," then "functional equivalency" must have certain entailments--including the well-established double jeopardy rule of Burks v. United States, 427 U.S. 1 (1978).

I think the Indiana AG is way off the track, however, when he suggests that the Court should not take the case because there is no disagreement among the lower courts. How could there be? Recall Roper v. Simmons, which I thought was most remarkable for the fact that the Missouri Supreme Court had taken upon itself the job of overruling Stanford v. Kentucky. Justice O'Connor's dissent in Roper did not let that anomaly pass without notice; and there are not many appellate courts willing to follow in the Missouri Supreme Court's footsteps. (The Indiana Court of Appeals' Jaramillo opinion, oddly, seems to say that the court could have overrulled both Almendarez-Torres and Monge: "Jaramillo’s argument is plausible, but by no mean unassailable. Accepting the argument requires a fair amount of speculation on our part concerning the way certain Justices would assess particular components of the analysis Jaramillo presents. We would prefer to take the guesswork out of the exercise altogether, and so will leave it to the Supreme Court to decide for itself whether a new view on that question should carry the day.")

I have been meaning to write about what's wrong with Jaramillo. It turns out that a great deal more is wrong with it than I thought, even if the apparently unobjectionable Monge analysis is fine with respect to federal law. It would appear, however, that Apprendi without the Almendarez-Torres exception for prior convictions was the common law rule in Indiana at least as early as 1898, when the Indiana Supreme Court said:

It is insisted by appellant that as a former conviction of petit larceny was not averred in the affidavit and information, no question concerning grand larceny or the punishment therefor was presented, and therefore the court erred in giving any instruction as to the right of the jury to find the appellant guilty of grand larceny, and that for the same reason the verdict was contrary to law.

The doctrine that when a statute imposes a greater punishment upon second and subsequent convictions of an offense, that the former conviction must be alleged in the indictment and proved at the trial, or the same can only be punished as a first offense, is sustained by the great weight of the authorities. Wharton's Crim. Pl. and Prac. (9th ed.), section 935; Bishop's Directions and Forms, section 91; 1 Bishop's Crim. Proc., section 101; Bishop's Stat. Crimes, sections 240, 981, 1044; 1 Bishop's Crim. Law, sections 959-964; Clark's Crim. Proc., pp. 203, 204; Maguire v. State, 47 Md. 485; Plumbly v. Commonwealth, 2 Metc. (Mass.) 413; Tuttle v. Commonwealth, 2 Gray 506; Commonwealth v. Holley, 3 Gray 458; Garvey v. Commonwealth, 8 Gray 382; Commonwealth v. Miller, 8 Gray 484; Commonwealth v. Harrington, 130 Mass. 35; Rauch v. Commonwealth, 78 Pa. 490; Rand v. Commonwealth, 50 Va. 738, 9 Gratt. 738; State v. Adams, 64 N.H. 440, 13 A. 785; State v. Gorham, 65 Me. 270.

Evans v. State, 150 Ind. 651, 653-54 (1898). Evans is not quite as simple as the above snippet would appear, but it has never been overruled. Perhaps no state law argument was presented to the Indiana Supreme Court in Jaramillo. Maybe it should have been. I'm trying to track down how Evans seems to have largely disappeared over time. My instinct is that it has to do with the Indiana appellate courts, especially the Indiana Supreme Court, lazily cribbing the work of the U.S. Supreme Court--which, if true, provides its own irony in view of the number of times the Seventh Circuit has concluded, especially in habeas death penalty cases, that the Indiana Supreme Court has unreasonably applied federal law as determined by the United States Supreme Court--to the extent it has applied federal law at all.

If the references to Bishop in Evans seem familiar, they should. They are all over Blakely; Apprendi, and Justice Thomas's Apprendi concurrence, joined by Justice Scalia, and which advocates "a broader rule" than Apprendi--i.e., no prior conviction exception. Actually, Justice Thomas's Apprendi concurrence cites Evans. One might even say that it is, in large part, based on Evans, judging from the following snippet:

[I]f the legislature defines some core crime and then provides for increasing the punishment of that crime upon a finding of some aggravating fact--of whatever sort, including the fact of a prior conviction--the core crime and the aggravating fact together constitute an aggravated crime, just as much as grand larceny is an aggravated form of petit larceny. The aggravating fact is an element of the aggravated crime.

Or is the petit-grand larceny example just an accident?

So there would be a certain poetry to the Court using an Indiana case . . . say, Jaramillo . . . to do in Almendarez-Torres. And we had Justice Souter writing Jones, Justice Stevens writing Apprendi and Booker, Justice Ginsburg writing Ring, and Justice Scalia writing Blakely. Who's missing from the Apprendi Five? Time for a Thomas opinion, isn't it, doing in Almendarez-Torres, which Justice Thomas now says he regrets having joined?

Does Smylie have a traveling companion?

Smylie, I discovered quite accidentally, is not the only Indiana Blakely case looking for cert. Jaramillo v. State (Ind. March 11, 2005) is looking to go to Washington as well. I have not mentioned Jaramillo, although I should have. When it was decided by the Indiana Supreme Court just two days after Smylie last March, I didn't have enough energy to say all that needed to be said about Jaramillo. Smylie was taking it all out of me. And I regret very much not having revisited Jaramillo in the meantime.

Strictly speaking, Jaramillo is not a Blakely case. It is a Monge v. California case. And Monge is an Almendarez-Torres case.

And it gets more interesting. As in Smylie, the U.S. Supreme Court requested a response from the Indiana AG. The AG asked for 60 more days; and SCOTUS gave him 30--until Sunday. (I don't know whether that means that the response has to be in tomorrow or on Monday.) Originally, by the way, Smylie and Jaramillo were both scheduled for the September 26th conference. Here is the link to the Jaramillo SCOTUS docket. (I have also been told that filings often don't show up on the docket for as much as ten days because of all the security measures to which the mail is subjected.)

Has a decision on cert. in Smylie not been forthcoming, because it and Jaramillo are going to be considered together? They are so dissimilar that that seems unlikely. On the other hand, SCOTUS requested responses from the AG in both cases; and my information is that that happens only when someone in Washington is looking very closely at a case. What are the odds that the two cases would invoke requests for responses and be scheduled for the same conference without some connection? I guess they could be 100 percent.

I am not going to spill the beans in this post about what the real matter with Jaramillo is. (Unlike Dostoyevsky's Underground Man, I don't have an editor to stop me from going on and on.) But here's a clue to for those fanactic enough to do the reading. Compare the Indiana Supreme Court opinion with the earlier opinion of the Court of Appeals. Something very important is missing. In fact, what is missing is more important to Jaramillo than what is there.

I hope to have Jaramillo's cert. petition within a few days.

[Update: Here is the link to the Jaramillo cert. petition.]

Smylie & Ritchie: No decision & denied.

Smylie was not among the grants or denials on today's SCOTUS order list. And according to Doug Berman's estimate on Sentencing Law & Policy, there are 2000 or so denials on the order list.

So Smylie lives to fight another day. Let's suppose there are four votes to grant cert. Perhaps those four votes want to see where the new Chief Justice will weigh in. If the four can get a fifth, then they go ahead; if not, the four votes evaporate. It seems to me that if there were five votes for cert. or only three, they'd just have just granted or denied. Maybe not.

Cert. was denied in Ritchie v. State, one of the cases, along with Barker, in which the Indiana Supreme Court decided that Ring does not require that juries in death penalty cases "find" that aggravating circumstances outweigh mitigating circumstances beyond a reasonable doubt. No case could have presented the question more clearly, so the cert. denial does mean something.