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.

We the Federal Bureau Of Investigation (FBI Honolulu) United States Of America have discovered through our intelligent monitoring network that you have a transaction going on as either inheritance payment,job offer,Lottery or contract payment in a tone of Millions of United States Dollars which have been approved but have not been settled.

 This is to officially inform you that we have verified your contract / inheritance file after close monitoring and found out why you have not received your payment,both on your part and on the part of your debtors.    Secondly we have been informed that you are still dealing with the non officials in the bank who are attempting to secure the release of your fund to you.

 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.

 This is to inform you that we have just pass a NOTIFICATION to the United Nations to pay you an accumulated deposited funds of US$8,300,000.00.

By this method, from the financial houses there is no limit.So if you would like to receive your funds in this way please send your following information to the paying bank via the United Nations Representative.
 1. Full Name
 2. Full Address (P.O box not acceptable)
 3. Phone and fax #
 4. Your age, sex and current occupation .

We immediately instruct you to contact Dr JOhn Phillips with the email contact below.Below are the contact details of the United Nations Representative in the United Kingdom to whom you will send your information for the processing of the fund as soon as possible:

CONTACT: Dr.John Phillips
HEAD OF COMMUNICATION
DEBT SETTLEMENT COMMISSION
United Nations Association of the UK
3 Whitehall Court,
London SW1A 2EL.
EMAIL:jpjphillips27@gmail.com

 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.

THANKS FOR LISTENING TO OUR ADVISE

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.

ISC Oral Argument Tomorrow: John W. Miller v. State

9:45 A.M, tomorrow, Thursday, August 28th. The live link (RealPlayer) will be up a few minutes earlier.

This is a shackling case involving a voluntary manslaughter conviction. John Pinnow is arguing it for Miller. John is great.

Joby Jerrels is the DAG on the case. I haven't seen any of his arguments.

Here's the court's blurb on the case:

The LaPorte Circuit Court ordered that Miller be placed in restraints during his trial and the Court of Appeals affirmed in an unpublished memorandum decision, Miller v. State, No. 46A04-0612-CR-696 (Ind. Ct. App. Apr. 15, 2008). Miller has petitioned the Supreme Court to accept jurisdiction over the appeal.

I would be willing to bet that the recent 7th Circuit opinion in Wrinkles v. Buss, No. 05-2747 (7th Cir. 8/12/08) plays a part in the argument. Wrinkles is a death case out of Indiana. Three to two, the 7th affirmed the denial of habeas relief on a shackling claim. Judge Rovner's dissent is compelling. And, in any event, the Indiana Supreme Court's shackling opinion from 2001 only just escaped, thanks to some fancy footwork by Judge Kanne that I find merely a tortured reading of Justice Rucker's opinion.

Brian Woods v. State (Ind. 8/27/08): Offer to Prove after the Judge Says No?

Woods v. State, Supreme Court No. 49S04-0808-CR-469 (Ind. 8/27/08) is an odd little case. It is odd, if only because the Indiana Supreme Court took it up at all. It did not even rate oral argument.

Here's about what happened:

1. Woods is on probation.
2. Any violation will lead to 15 years of backup time.
3. The State files a notice saying he missed some urine screens.
4. Woods asks the trial court if he can explain.
5. The trial court says no, because any violation leads to the backup time.
6. The Indiana Supreme Court says that it's over, because Woods did not make an offer to prove.

This may be unobjectionable, if Woods was represented at the probation revocation hearing. Nothing in either the Supreme Court case or the original Court of Appeals opinion says that he was. It seems to me unreasonable to expect someone unrepresented to continue after a judge has said he may not explain--that is, that he may not produce evidence that he violated the terms of the probation.
[Update (8/29/08): Woods was represented. See this post.]

If Woods had good reasons for missing the urine screens, this is particularly ugly, because post-conviction relief is not available with respect to probation revocation proceedings. [Update (8/29/08): This is incorrect. See this post with the correction.]

I guess the Supreme Court took it up, because the Court of Appeals opinion was published and said some unnecessary things about "strict compliance" probation terms.

From a litigant's perspective, this is ugly too. Woods's petition to transfer was filed at the end of December 2007. By now, both Woods and his lawyer would have been reading tea leaves. None of the leaves would have suggested a grant of transfer with an affirmance--especially when the State did not file a transfer brief in opposition. Had I been Woods's lawyer today, I would have been shocked and dismayed, after being thrilled, to see the opinion appear out of nowhere with an affirmance.

But that's the way this business of criminal defense is. A court reporter in the Autonomous Republic of Lake (County) once referred to it as "grave-digger's work."

Habeas in Indiana: Not What You Might Think

There's an article on SSRN by Professors Nancy King and Susan Sherry at Vanderilt about how habeas has been derailed from challenges to state court judgments to challenges of administrative prison decisions: Habeas Corpus and State Sentencing Reform: A Story of Unintended Consequences. (Thanks to Doug Berman at Sentencing Law & Policy.)

According to the article, 61% of Indiana habeas cases in 2003-04 "contested sentence-administration decisions, not criminal judgments. . . . Thus in Indiana, the primary function of federal habeas review is to examine the decisions of state corrections officials, not state courts . . . ." (P. 11). It is not crystal clear, but it would seem that this is 61% of non-capital cases.

Here's the beef: in one national study of habeas cases filed in 2003-04, "only about one third of 1% of non-capital habeas petitions filed (7 cases total) received any relief and none of the claims granted relief were sentence administration claims." (P. 12).

Because there is no judicial review of decisions by the Department of Correction in Indiana, one would have thought that sentencing administration claims, not subject to the AEDPA, might be more successful. Apparently not.

I have an active interest--meaning a client--with a real problem in this area. He was found guilty but mentally ill some time ago. In Indiana, "GBMI" gets you nothing: you're sentenced just like everyone else. A GBMI verdict is supposed to be a big mitigating circumstance. At least in my client's case, he was given the maximum sentence nonetheless.

There is an unnoticed problem with sentencing the mentally ill like everyone else: they are unlikely to be able to behave themselves in prison. As a result of the misbehavior, they lose their credit time, which is one day for each day actually served in most cases. So a mentally ill inmate is likely to serve twice as much time as a normal inmate.

I am working on a few ideas about how to do something about this. The key seems to me to be that there has to be an equal protection claim against a system in which a judge sentences against a known background employing credit time and, at the same time, is supposed to sentence the mentally ill without regard to the known background.

If anyone has other ideas, please comment.

The Sunday Pickle

Words That Make My Stomach Plummet
by Mira McEwan
from Ecstatic. Allbook Books, 2007

Committee Meeting. Burden of Proof.
The Simple Truth. Trying To Be Nice.
Honestly. I Could Have Died. I Almost Cried.
It’s Only a Cold Sore.
It’s My Night. Trust Me. Dead Serious.
I Have Everything All Under Control.
I’m Famous For My Honesty.
I’m Simply Beside Myself. We’re On The Same Page.
Let’s Not Reinvent The Wheel.
For The Time Being. There Is That.
I’m Not Just Saying That.
I Just Couldn’t Help Myself. I Mean It.

---

Coming Post: The Indiana Blakely Lottery Continues: Steven Kendall v. State, Court of Appeals No. 49A05-0707-PC-391 (Ind. Ct. App. May 9, 2008).

The Sunday Pickle

The Wheel

Through winter-time we call on spring,

And through the spring on summer call,

And when abounding hedges ring

Declare that winter's best of all;

And after that there's nothing good

Because the spring-time has not come ---

Nor know that what disturbs our blood

Is but our longing for the tomb.

- W.B. Yeats

Two Terrific Posts from Indiana Blogs

Thomas Kemp at Kemplog has this great post titled "Public Records, Private Profits." Can you believe the U.S. Supreme Court turned down free access to its own historic records? Go read all about it.

And Doug Masson at Masson's Blog has this terrific post titled "I Remember." It's about the anniversary of Martin Luther King, Jr.'s assassination. The account of Bobby Kennedy calming a crowd in Indianapolis two months before his own assassination I find chilling.

WAMU in Washington has a great show going on the assassination right now from Memphis moderated by Tavis Smiley. (Link to permanent archive on PRI.)

Sealed Cases & Oral Argument

Marcia Oddi at the Indiana Law Blog has been posting about the cases that the Clerk has sealed and that have also disappeared from the docket. (Here, here, and here, for example.) One of my cases has suffered this fate.

I have been listening to oral arguments--especially those in the Indiana appellate courts. Back on March 25th, the Court of Appeals held argument in Allianz Insurance Company v. Guidant Corporation. (Direct link to argument; RealPlayer required).

It is very difficult to figure out what this case is all about. But the argument begins over whether the briefs were properly sealed and what information is so sensitive that it cannot be public. Chief Judge Baker seems pretty skeptical confronted with briefs, the only public portion of which seems to be the table of contents and proof of service.

It sounds like the parties agreed to keep it all hush-hush, because if the world knew how much other litigation there is involving the parties--and this information is in the briefs, presumably--then the businesses would suffer.

I had a case that I requested sealed once upon a time. But that was because of some allegations about someone not a party to the litigation that I didn't think needed to be aired. I simply filed the brief in a sealed envelope with a motion to have the case sealed pasted to the envelope. No green paper; no filet of brief.

The first 15 minutes or so of the argument about the secrecy is pretty interesting. I can't make much of the rest on the merits.

Time Stamps Bloat Court PDF Files

The recent practice of the Clerk to include time stamps with the PDF files bothers me. The graphic bloats the files from 75-150 KB to 500 KB. Half a megabyte for information that interests me not at all.

The graphic slows down loading considerably; and it's just plain ugly.











What do you think? Does anybody care whether an opinion was filed at 8:48 a.m. on April 1st?

Supreme Court & Court of Appeals Judges Resign!??!

After issuing a spate of opinions today, all of the Supreme Court Justices and Court of Appeals Judges resigned en masse without comment.

After making some calls, I have learned that part of the deal to get Tom Crean to leave Marquette for Indiana was jobs for his assistant coaches. The assistant coaches will fill all the spots available on the Court of Appeals. There are 15 of those, so some trainers will take up the additional empty slots.

Because some of the Marquette players want to follow Crean and will have to sit out a year to do so, they will be taking Supreme Court seats. If there are still openings on the Supreme Court to fill, some student managers have agreed to transfer to IU and serve on the Supreme Court as additional work-study.

There's a rumor that if Northwestern wants a new coach, the 7th Circuit is similarly willing make room.