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Criminal Justice Magazine
Summer 2005
Volume 20 Issue 2

Cert Alert

Prosecution Nearly Shut Out in Third Quarter

By Paul Rashkind

Paul M. Rashkind is a supervisory assistant federal public defender and chief of appeals for the Office of the Federal Public Defender, Southern District of Florida, in Miami. He also serves on the adjunct faculty of the University of Miami School of Law. He is the Section's vice-chair for publications, chair of the Book Committee, and a contributing editor to Criminal Justice magazine.

The explosion of decisions and certiorari grants following the New Year recess continued into the third quarter of the Supreme Court’s 2004-05 Term. The Court decided 10 cases and granted certiorari review in four others. Interestingly, the quarter was nearly a shutout in favor of criminal defendants in battles against the prosecution and states.
In five cases, all decided during a two-week period in February and March, the Court wrought a watershed change prohibiting the death penalty for juvenile killers (Roper); limited the use of a major federal sentencing enhancement, while signaling that the watershed Apprendi rule may still have enough life remaining to gobble up its present exception for sentences enhanced due to prior convictions (Shepard); expanded double jeopardy protections to cases of ambiguous acquittals (Smith); approved broader avenues of relief for inmates challenging the constitutionality of state parole procedures (Wilkinson); and prevented states from systematically segregating inmates based on race, even if based on race-neutral security concerns (Johnson).
By late March, the prosecution finally won one, permitting police to disable a house occupant while executing a search warrant (Mena), and another at the end of April, allowing U.S. prosecution for defrauding a foreign government of taxes (Pasquantino). The prosecution lost ground in three other cases, however, which loosened restrictions in habeas corpus cases (Rhines, Johnson) and of gun possession by felons whose conviction occurred in foreign countries (Small).
For the next term, the Court agreed to decide if California’s death penalty appellate review properly evaluates harmless error (Sanders), the factors relevant to reinitiation of police interrogation after the right to counsel has been invoked (Blake), the validity of third-party consent to search common premises when the suspect refuses consent (Randolph), and if Oregon’s state law permitting distribution of controlled substances to facilitate suicide must yield to contrary federal law (Gonzalez).


Death Penalty
Juvenile murderers. Roper v. Simmons, 125 S. Ct. 1183 ( 2005). The Supreme Court reexamined the shifting history, tradition, and precedent interpreting the Eighth Amendment’s prohibition of “cruel and unusual punishment” to decide if juveniles who commit murder may be subject to the death penalty. One of those shifts involved the Court’s recent decision in Atkins v. Virginia, 536 U. S. 304 (2002), banning the imposition of the death penalty on mentally retarded persons, a reversal of prior precedent. In light of those shifting considerations, the Court receded from its previous holding in Stanford v. Kentucky, 492 U.S. 361 (1989) (death penalty may be applied to juvenile murderers), and held that the Eighth and Fourteenth Amendments prohibit the imposition of the death penalty on offenders who were under the age of 18 when their crimes were committed.

Special Circumstances. Brown v. Sanders, 125 S. Ct. ___, cert. granted, Mar. 28, 2005; decision below at 373 F.3d 1054 (9th Cir. 2004). Is the California death penalty statute a “weighing statute” for which the state court is required to determine that the presence of an invalid special circumstance was harmless beyond a reasonable doubt as to the jury’s determination of penalty? If precedent dictates that the answer is “yes,” was it necessary for the state supreme court to specifically use the phrases “harmless error” or “reasonable doubt” in determining that there was no “reasonable possibility” that the invalid special circumstance affected the jury’s sentence selection?


Federal Sentencing
Determining qualifying prior convictions. Shepard v. United States, 125 S. Ct. 1254 (2005). A sentencing court may not resort to nonjudicial records, such as police reports, to establish a predicate felony under the federal Armed Career Criminal Act (ACCA). In some states, statutory offenses may be generic or nongeneric, as in the case of the Massachusetts burglary statute, so not all violations of the statute will necessarily qualify as crimes of violence for ACCA purposes. In a case in which the proposed prior predicate offense was decided by a guilty plea, the government urged the district court to ascertain if it qualified as an ACCA predicate offense by relying on facts found not only in the indictment, guilty plea, and plea colloquy, but also facts set forth in police reports generated at the time of the defendant’s arrest for the prior felony. The Supreme Court rejected this suggestion, in particular because police reports are written well before the guilty plea and, unless their content is admitted by the defendant during the guilty plea, they are not proof of the basis of the plea. More interesting, perhaps, is the concurrence of Justice Thomas, who repeats his concurrence in Apprendi v. New Jersey, 530 U.S. 466, 487-90 (2002), in which he calls into question the continuing viability of Apprendi’s exception for prior convictions. By his count, a majority of Supreme Court justices now reject Almendarez-Torres v. United States, 523 U.S. 224 (1998), on which the Apprendi exception relies, and, for him, this case is more properly decided by now overruling Almendarez-Torres and prohibiting judicial fact-finding that concerns a defendant’s prior convictions.


Search and Seizure
Detaining occupant during house search. Muehler v. Mena, 125 S. Ct. 1465 (2005). Police executing a search warrant at the house of a gang member did not violate the rights of an occupant by detaining her in handcuffs while they searched. Nor did police violate her rights by interrogating her about her immigration status.

Third-party consent to search. Georgia v. Randolph, 125 S. Ct. __, cert. granted, April 18, 2003; decision below at 604 S.E. 2d 835 (Ga. 2004). Whether an occupant may give law enforcement officers valid consent to search the common areas of the premises shared with another, even though the other occupant is present and objects to the search?


Confessions
Interrogation after invoking right to counsel. Maryland v. Blake, 125 S. Ct. __, cert. granted, Apr. 18, 2005; decision below at 849 A.2d 410 (Md. 2004). When a police officer communicates with a suspect after invocation of the suspect’s right to counsel, does Edwards v. Arizona permit consideration of curative measures by the police, or other intervening circumstances, to conclude that a suspect later initiated communication with the police?


Double Jeopardy
Vacillating judicial acquittals. Smith v. Massachusetts, 125 S. Ct. 1536 (2005). Double jeopardy principles bar a trial judge, after granting a motion finding insufficient evidence supported a gun count against a defendant when the prosecution rested its case, to change his mind and reconsider the issue after the defense rested. The Court noted that the trial judge’s ruling on the defense motion regarding the insufficiency of the evidence was in effect an acquittal. The ruling resolved some of the factual elements of the offense charged. And even if the jury was the primary fact finder in the case, the trial judge still resolves factual issues when ruling on a motion for judgment of acquittal. The Court found that the acquittal triggered double jeopardy protection. First, the prosecution, after the ruling, did not make or reserve a motion for reconsideration, or seek a continuance. Further, the Massachusetts rules of procedure did not authorize the trial court to defer ruling on the motion. In addition, a defendant is prejudiced when the trial continues and he or she labors under the mistaken impression that there is no risk of conviction as to a certain count. This mistaken impression could lead the defendant to present inadvisable defenses, for example, admitting guilt on the acquitted count. It could also impact how codefendants present their defenses. The Court explained: “The Double Jeopardy Clause’s guarantee cannot be allowed to become a potential snare for those who reasonably rely upon it. If, after a facially unqualified midtrial dismissal of one count, the trial has proceeded to the defendant’s introduction of evidence, the acquittal must be treated as final, unless the availability of reconsideration has been plainly established by pre-existing rule or case authority.” In an unusual alignment of the justices, the four dissenters (Ginsburg, J., joined by Rehnquist, C.J., Kennedy and Breyer, JJ.) found that the defendant suffered no prejudice in this case when the judge reconsidered his ruling, but the majority opinion (Scalia, J., joined by Stevens, O’Connor, Souter and Thomas, JJ.) responded that “requiring someone to defend against a charge of which he has already been acquitted is prejudice per se for purposes of the Double Jeopardy Clause—even when the acquittal was erroneous.”


Crimes and Offenses
Foreign convictions affecting gun ownership. Small v. United States, 125 S. Ct. __ (April 26, 2005). A foreign conviction, unlike a domestic conviction, does not disqualify a person from possessing a firearm under federal law.

Wire Fraud. Pasquantino v. United States, 125 S. Ct. __ (April 26, 2005). A plot by persons in the United States to defraud a foreign government of tax revenue may be prosecuted under the federal wire fraud law.

Federal crimes vs. state’s rights. Gonzales v. Oregon, 125 S. Ct. ___, cert. granted, Feb. 22, 2005; decision below at 368 F.3d 1118 (9th Cir. 2004). The Court will review whether physicians who prescribe or administer drugs that accelerate the death of terminally ill patients in conformity with Oregon’s physician-assisted suicide law may nevertheless be prosecuted federally under the federal Controlled Substances Act.

Habeas Corpus
Challenging parole procedures. Wilkinson v. Dotson, 125 S. Ct. 1242 (2005). State prisoners may bring a section 1983 action for declaratory and injunctive relief challenging the constitutionality of state parole procedures; they need not seek relief exclusively under the federal habeas corpus statutes.

Mixed petitions. Rhines v. Weber, 125 S. Ct. 1528 (2005). To accommodate AEDPA’s statute of limitations, the Court approved of limited “stay and abeyance” orders while habeas petitioners exhaust mixed petitions (receding from Rose v. Lundy, which required dismissal of mixed petitions).

Resentencing after vacatur. Johnson v. United States, 125 S. Ct. 1571 (2005). A federal defendant who successfully challenges an earlier conviction that served to enhance the present sentence has a year after the set-aside to file a 2255 petition to have the present federal sentence reduced commensurately, but the defendant must diligently attack the prior sentence promptly, as soon as it is clear that it might affect the federal sentence.


Due Process
Prisoner security classifications. Johnson v. California, 125 S. Ct. 1141 (2005). The California Department of Corrections has an unwritten policy of racially segregating prisoners in double cells for up to 60 days each time they enter a new correctional facility, based on the asserted rationale that it prevents violence caused by racial gangs. Johnson, an African-American inmate who has been intermittently double-celled under the policy’s terms ever since his 1987 incarceration, filed suit alleging that the policy violates his Fourteenth Amendment right to equal protection. The Supreme Court decided that the “strict scrutiny” test applies to this claim because the racial classification is “immediately suspect.” The Court refused to allow an exception for the uniqueness of a prison setting, in particular because the federal government and other states regulate prison violence without resort to California’s policy of racial segregation. The Court did not decide the ultimate equal protection issue, remanding decision of that question to the Ninth Circuit.


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