On October 13, 2015, the U.S. Supreme Court will hear oral argument in Montgomery v. Louisiana, a case that presents the question whether Miller v. Alabama, 567 U.S. ___, 132 S. Ct. 2455 (2012), applies retroactively to convictions that became final before Miller was decided. In Miller the Court held that under the Eighth Amendment a sentencing scheme that mandates life without parole for defendants less than 18 years old at the time of their crimes is unconstitutional. Miller did not categorically ban a life without parole sentence for juvenile offenders; rather it mandated that the sentencer must consider an offender’s youth and attendant characteristics before imposing such a penalty. Miller applies to all cases that were pending when it was decided as well as to all future cases. Griffith v. Kentucky, 479 U.S. 314 (1987). The question of retroactivity is whether the Miller rule applies to cases that became final before the decision was issued. As I noted in a blog post here, the lower courts are divided on the issue. The Court’s decision in Montgomery might finally resolve it. Continue reading
Tag Archives: supreme court
On June 18th the U.S. Supreme Court decided Ohio v. Clark, 576 U.S. __, 135 S. Ct. 2173 (2015), holding that a child abuse victim’s statements to his preschool teachers were non-testimonial under the Crawford confrontation clause analysis. As the first Crawford case addressing statements by a child victim, Clark is an important decision for child abuse prosecutions. Also, because it’s the Court’s first case assessing the testimonial nature of statements made to persons other than the police or their agents, it has broader significance for the Crawford analysis. Continue reading →
The United States Supreme Court just decided a capital case about intellectual disability, formerly known as mental retardation. In some ways, it’s an “error correction” case that doesn’t break new doctrinal ground. But it stands out for two reasons. First, it may be indicative of the current Court’s attitude towards the death penalty. And second, Justice Thomas wrote a dissenting opinion focused in large part on former professional football player Warrick Dunn. Continue reading →
On Monday, the United States Supreme Court unanimously decided a case about the disposition of a defendant’s guns after the defendant has been convicted of a felony. The case is Henderson v. United States. This post discusses the case and its implications for North Carolina. Continue reading →
Yesterday, the Supreme Court decided Rodriguez v. United States, an important traffic stop case that changes North Carolina law as it pertains to certain drug dog sniffs, and perhaps other investigative techniques as well. Continue reading →
I previously wrote (here) about the U.S. Supreme Court’s recent cert grant in Ohio v. Clark, a case in which the Court will decide whether a three-year-old child’s statements to his preschool teachers are testimonial. Hiding in plain sight in that case is an issue as interesting as the Crawford question that the Court will decide. In Clark, the Ohio Supreme Court held that the child’s statements to his teachers identifying the defendant as the perpetrator were testimonial. It further held that the trial court violated the defendant’s confrontation clause rights when it admitted the child’s out of court statements to his teachers at trial, after finding the child—L.P. —incompetent to testify. L.P. was found to be incompetent six months after uttering the statements at issue. Continue reading →
Shea blogged here about State v. Heien, the case in which the court of appeals ruled that having one burned-out brake light was not a violation of G.S. 20-129 and so did not support a vehicle stop. (The stop led to a consent search of the defendant’s vehicle, which led to the discovery of drugs and to drug trafficking charges.) The prosecution sought review in the state supreme court. That court assumed that the court of appeals was correct about the scope of the statute but determined (1) that an officer might reasonably think otherwise, given ambiguities in the statute, and (2) that reasonable suspicion may be based on a reasonable mistake of law. Conclusion (2) was the subject of a split of authority across the country, so the United States Supreme Court agreed to review the case. It issued its opinion yesterday. Continue reading →
Some inmates are serving long sentences for older crimes that would receive a much shorter sentence under today’s law. It is clear at this point that they cannot have today’s law applied to them retroactively, as Jessie discussed in this prior post. That’s true for inmates who received longer sentences under Fair Sentencing, State v. Whitehead, 365 N.C. 444 (2012), or earlier versions of Structured Sentencing, State v. Lee__ N.C. App. __, 745 S.E.2d 73 (2013). And it is so because the legislature has always made changes to the sentencing law apply prospectively.
That’s all well and good as a matter of legislative intent, but do those inmates have a constitutional argument that their sentences violate the Eighth Amendment’s prohibition on cruel and unusual punishment? After all, the amendment is informed by the “evolving standards of decency that mark the progress of a maturing society.” Estelle v. Gamble, 429 U.S. 97 (1976). Does a downward change in the way the legislature punishes an offense demonstrate an evolved standard? Two recent cases conclude it does not.
In State v. Stubbs, __ N.C. App. __, 754 S.E.2d 174 (2014), the defendant received a life sentence for a second-degree burglary committed in 1973. He filed an MAR arguing that after almost forty years in prison, he had already served “nearly ten times the length of time that any defendant could be ordered to serve today.” (The maximum possible sentence today for second-degree burglary, a Class G felony, is 47 months.) The trial judge agreed, granted the motion, and resentenced the defendant to 30 years, which made him due for immediate release. The State filed a petition for a writ of certiorari with the court of appeals.
A divided court of appeals reversed, concluding that the trial judge applied the wrong test to determine whether the sentence violated the Eighth Amendment. A prison sentence does not become cruel and unusual by virtue of ordinary disproportionality. Rather, it must be grossly disproportionate. Harmelin v. Michigan, 501 U.S. 957 (1991) (Kennedy, J., concurring). After a quick review of the leading cases—Hamerlin, 501 U.S. at 961 (upholding a life sentence for possession of 650 grams of cocaine; Ewing v. California (upholding a sentence of 25 years to life for felony grand theft under California’s three strikes law)—the court concluded that Stubbs’ sentence did not meet that high standard.
The court also rejected the Mr. Stubbs’ argument that the Supreme Court’s more recent guidance in Graham v. Florida, 560 U.S. 48 (2010) (discussed here), dictated a different result. In Graham the Court barred sentences of life without parole for non-homicide offenses committed by defendants under 18 at the time of their offense. Mr. Stubbs was 17 years old at the time of his burglary, but he was not sentenced to life without parole. Rather, as a life-sentenced inmate from 1973 he was eligible for parole after 10 years. In fact, he was paroled in 2008. But his parole was revoked and he was returned to prison after a DWI conviction in 2010. With that in mind, the court of appeals determined that Stubbs did have a “meaningful opportunity to obtain release,” and that his sentence was therefore not unconstitutional under Graham.
The second case is State v. Wilkerson, __ N.C. App. __, 753 S.E.2d 829 (2014). In Wilkerson the defendant was originally sentenced in 1991 to a total of 50 years on 10 felonies (one second-degree burglary and several larceny, breaking or entering, and stolen property crimes). He was 16 at the time of the crimes and had no criminal record. Mr. Wilkerson filed an MAR in 2012 arguing that his 50-year sentence was grossly disproportionate to the sentence a first-time offender could receive for the same crimes today. (By my estimation the maximum possible consecutive sentence for the same crimes today would be around 17 years.) The trial court granted the motion and resentenced Mr. Wilkerson to 21 years, which was the time he had already served. As in Stubbs the state petitioned the court of appeals for a writ of certiorari.
And as in Stubbs the court of appeals reversed. The appellate court held that the trial court erred by first comparing the sentence the defendant received with the sentence a person would receive for the same crimes committed today. The proper first step in the analysis, the court said, is to weigh the gravity of the offense and the severity of the sentence—and that step must be completed “without taking subsequent sentencing amendments into account.” Only when that threshold test gives rise to an inference of gross disproportionality should you continue to the step of comparing the defendant’s sentence with the sentences of other offenders. Harmelin, 501 U.S. at 1005. The court concluded that under the proper analytical framework the trial court never would have made it past step one in Wilkerson’s case. Yes, the defendant was young and his crimes were nonviolent. But there were still 10 felony convictions, one of which (the burglary) was “particularly serious.” With that in mind the court of appeals found “no basis for concluding that this is one of the ‘exceedingly rare noncapital cases’ in which the sentence imposed is ‘grossly disproportionate’ to the crimes.”
Stubbs and Wilkerson reaffirm something we already knew: it’s hard to succeed on an Eighth Amendment claim. Recent Supreme Court cases like Graham and Miller v. Alabama (discussed here) may have broadened our understanding of “cruel and unusual,” but they don’t appear to have started a full-blown Eighth Amendment revolution. Occasionally our appellate courts have said things like “as long as the judge sentences within the limits established by the legislature, the Eighth Amendment is not offended.” State v. Streeter, 146 N.C. App. 594 (2001). That probably goes a little too far (at some extreme, the Constitutional obviously trumps the General Statutes), but it’s still true to say that a sentence will be found to violate the Eighth Amendment “only in exceedingly unusual non-capital cases.” State v. Ysaguire, 309 N.C. 780 (1983).
Finally, these cases also raised—and perhaps resolved—an important procedural question about the court of appeals’ jurisdiction to issue a writ of certiorari related to a trial court order granting a motion for appropriate relief. Rule 21 of the Rules of Appellate Procedure mentions only orders denying MARs, and a prior case, State v. Starkey, 177 N.C. App. 264 (2006) (discussed here by Jeff) appeared to limit the state’s ability to obtain review. Obviously both the Wilkerson and Stubbs courts saw things differently, as they issued the writ and reversed the new sentences. Wilkerson expressly distinguished Starkey. 753 S.E.2d at 833 (“As a result, however, of the fact that Starkey conflicts with several decisions of the Supreme Court that authorize review of trial court decisions granting motions for appropriate relief filed by a defendant, our decision in Starkey does not stand as an obstacle to the allowance of the State’s certiorari petition.”). This post is far too long so I’ll leave it at that for now, but it’s a topic worth revisiting soon.
Yesterday, the Supreme Court issued a long-awaited opinion concerning searching cell phones incident to arrest. The Court ruled that the search incident to arrest exception to the warrant requirement doesn’t apply to cell phones. North Carolina law previously allowed such searches, so the opinion is significant.
The facts of the cases. The Court ruled on two cases: Riley v. California and Wurie v. United States. The opinion is captioned with the Riley case name. Riley began with a traffic stop, which led to a gun arrest, which led to a phone search, which revealed evidence that linked the defendant to a shooting. Wurie began with a drug arrest, which led to a phone search, which revealed the location of the defendant’s residence, which enabled officers to obtain and to execute a search warrant for the home, which led to the seizure of drugs and firearms.
The lower court rulings. Both defendants moved to suppress, arguing that the searches of their phones incident to arrest violated the Fourth Amendment. Both motions were denied at the trial level, and both defendants were convicted. On appeal, defendant Riley lost, while defendant Wurie won. The Supreme Court agreed to review the cases together.
The Supreme Court’s ruling. The Court ruled 9-0 for the defendants. The lead opinion was written by Chief Justice Roberts. The Court stated that searches incident to arrest generally are justified (a) to ensure that the arrestee doesn’t have a weapon, and (b) to prevent the arrestee from destroying evidence. But, it continued, cell phone searches don’t implicate those concerns. “[O]fficers remain free to examine the physical aspects of a phone to ensure that it will not be used as a weapon,” but the data on the phone doesn’t pose a risk of physical harm. And there is little risk that the data on a phone will be destroyed by the arrestee. The Court indicated that an arrestee’s phone may be seized while officer seek a search warrant. The prosecution argued that even seized phones could be locked or remotely wiped if not inspected immediately, but the Court found little reason to believe that these practices were prevalent or could be remedied by a search incident to arrest. Further, the risk of such practices can be managed by using Faraday bags and other tools. Thus, the Court found little justification for allowing phones to be searched incident to arrest.
On the other side of the ledger, the Court found a strong privacy interest militating against such searches. It noted that phones often contain vast quantities of data, making a search intrusive far beyond the mere fact of arrest itself and far beyond the level of intrusion associated with more traditional searches of pockets, wallets, and purses incident to arrest. Indeed, many phones can access data stored on remote servers, making a search extend far beyond the immediate area of the arrestee. Emphasizing the need to establish a clear and workable rule, the Court therefore categorically exempted cell phones from the search incident to arrest doctrine.
Comments. A few things struck me about the Court’s ruling:
- One, the phone in Wurie was a flip phone, while the one in Riley was a smart phone. The Court’s holding was not dependent on the capacity of the device, and seems certain to apply to other forms of electronic devices that are carried frequently, such as tablets and laptops. In fact, the Court at one point referred to phones as “minicomputers.” More generally, the Court seemed to view the dawn of the digital age as a significant development for Fourth Amendment purposes. Combined with the Court’s 9-0 vote against warrantless GPS tracking in United States v. Jones, it seems that the Court may believe that emerging technologies require a new approach to the Fourth Amendment.
- Two, the Court acknowledged that in some cases, other doctrines might support a warrantless search of a phone. For example, if there were reason to believe that a violent crime were unfolding and that evidence of the crime was on the phone, exigent circumstances might support the search. And of course, officers may ask for consent to search an arrestee’s phone.
- Three, still, this opinion likely will cut down on warrantless phone searches . . . and accordingly may increase the number of search warrants that are sought for phones. Officers should bone up on how to draft warrant applications in such cases, and the courts should prepare to see more applications and to handle more litigation over warrants.
- Four, the opinion suggests that data stored in “the cloud” is protected by the Fourth Amendment. One of the justifications that the Court provides for why cell phone searches are more intrusive than searches of physical objects is that phones may be connected to remote servers. For example, my iPhone is connected to Yahoo!’s servers so that I can access my email. If this feature makes phone searches more intrusive, it would seem to follow that the remote data is generally subject to an expectation of privacy. That suggestion is significant, as many courts have viewed such data as having no constitutional protection as a result of the third-party doctrine of Smith v. Maryland.
- Five, get ready for the debates over retroactivity and related issues.
What’s your reaction to the decision?
Monday, the Supreme Court denied a petition for certiorari filed in Ballard v. Pennsylvania. One interesting aspect of the case is that the defendant on whose behalf the petition was filed says that he never authorized it to be filed, and the lawyer who filed it says that he is not the inmate’s lawyer. The Supreme Court has asked the lawyer to explain himself.
First, a bit of background. Ballard is a capital case. The defendant was charged with stabbing four people to death, including his ex-girlfriend. He was on parole at the time, having previously been convicted of murdering another man. He pled guilty to four counts of first-degree murder, and after a sentencing hearing, a jury imposed a sentence of death. He appealed his conviction in the state courts. The Pennsylvania Supreme Court affirmed in November 2013. Com. v. Ballard, 80 A.3d 380 (Pa. 2013).
Ballard was represented at trial and in his state court appeals by a public defender. According to the public defender, after the state supreme court decided the case, he wrote Ballard and advised him of his legal options. The normal course in a capital case is to seek Supreme Court review of the state court’s decision, and then to file a federal habeas petition. But Ballard “wrote back and said he did not intend to pursue any further appeals.” So the public defender didn’t file anything.
In February 2014, Marc Bookman of the Atlantic Center for Capital Representation in Philadelphia filed a motion for extension of time with the Supreme Court on Ballard’s behalf. In March 2014, he filed a petition for a writ of certiorari with the Court. The Court’s docket sheet lists Bookman as Ballard’s lawyer.
In early June, Ballard wrote to the Supreme Court. The text of his letter is available here. In a nutshell, it asserts that he learned of the filing only through the media, that he “never authorized anyone to file anything on [his] behalf,” and that Bookman (who he described as a “Federal Defender”) acted without his authorization and without his knowledge.
The Court denied the petition and ordered Bookman to respond to Ballard’s letter within 40 days. Bookman has apparently told a local newspaper that he was not Ballard’s attorney, and has declined further comment.
As to the possibility of a future federal habeas filing, it appears that attorneys with the Federal Defender’s office have contacted Ballard and have encouraged him to seek federal review. According to this article, Ballard “has refused to allow the federal defenders to represent him and has instructed the state prison system to bar them from visiting him.” The district attorney says that he will “file a complaint with the disciplinary board” if the federal defender files a petition on Ballard’s behalf.
Perhaps Bookman’s response to the Supreme Court will offer a satisfactory explanation of the situation. For example, perhaps Ballard did authorize Bookman to seek Supreme Court review, and lied about it in his letter. Or perhaps the two had an ambiguous conversation that left Bookman believing that he was authorized to go forward while Ballard believed that no such decision had been made. Ballard had previously indicated that he wanted to appeal, and a woman with whom he corresponds recently said that his current intentions are “confusing to her, and could be merely a ‘tactic’ in his legal efforts.” (See the end of this article.)
But if Bookman is in fact an interloper who filed a petition on Ballard’s behalf but without his approval, Bookman is in serious ethical trouble. Whether to appeal is a client’s decision, not a lawyer’s. It certainly isn’t a decision to be made by a lawyer who isn’t involved in the case. Even if there were doubt about Ballard’s competence – an issue that arises frequently when a death-sentenced defendant seeks to drop his appeals – the public defender who represented him would be in the best position to raise the issue, not Bookman. And even if Bookman thought that the public defender was dropping the ball on that front, simply filing a petition on behalf of Ballard without raising the issues of competency and representation would not be the way to do it.
Anyone see anything else in this case? Any other possible explanations for Bookman’s alleged conduct? It’s interesting to me that the Supreme Court has decided to address the issue itself rather than remanding it to a lower court. Stay tuned.