Wednesday, May 27, 2009

Supreme Court right-to-counsel decision

The United States Supreme Court yesterday overruled a long-standing police interrogation precedent set almost 25 years ago. (See ScotusBlog report)

In its 1986 holding in Michigan v. Jackson, the Court had formulated the rule "forbidding police to initiate the interrogation of a criminal defendant once he/she has invoked his right to counsel at an arraignment or similar proceeding," reasoning that that protection "is not triggered unless the defendant actually requests a lawyer or has otherwise asserted his Sixth Amendment right to counsel." That scenario didn’t play out in this case, Montejo v. Louisiana, where the defendant presumably "stood mute at his hearing while the judge ordered the appointment of counsel, having made no such request or assertion.."

"Requiring an initial 'invocation' of the right to counsel in order to trigger the Jackson presumption," the Court said, "might work in States that require an indigent defendant to formally request counsel before an appointment is made, but not in more than half the States, which appoint counsel without request from the defendant."

"… when this Court creates a prophylactic rule to protect a constitutional right," the Court said, "the relevant 'reasoning' is the weighing of the rule's benefits against its costs, and Jackson's marginal benefits are dwarfed by its substantial costs.

"Even without Jackson, few badgering –induced waivers, if any, would be admitted at trial because the Court has taken substantial other, overlapping measures to exclude them. Under Miranda, any suspect subject to custodial interrogation must be advised of his right to have a lawyer present. Under Edwards v. Arizona, once such a defendant 'has invoked his [Miranda] right,' interrogation must stop. And under Minnick v. Mississippi, no subsequent interrogation may take place until counsel is present. These three layers of prophylaxis are sufficient… Under the Miranda-Edwards-Minnick line of cases (which is not in doubt), a defendant who does not want to speak to the police without counsel present need only say as much when he is first approached and given his Miranda warning."

Justices Stevens, Souter, Ginsburg, and Breyer dissented

Friday, May 22, 2009

Revised Federal Forms

Who'd believe that, at one point, at least, there were over 500 forms in use in the federal judicial system.

But after two years or work, U.S. District Judge Harvey Schlesinger's work group gotten thru them all, eliminating unused or duplicate formats, refining others, and updating the language to reflect rule changes in still others. They went to the people using the forms – clerk of courts, probation officers, magistrates, and others – for their input and suggestions.

They were "particularly aware of privacy issues and the rules on redaction that have become Judicial Conference policy since many of the forms were created," the Judge was quoted in The Third Branch, the Federal Courts' newsletter.

"We restyled language, as they've done with the Rules of Practice & Procedure, to make forms simpler, clearer, more consistent, and easier to read," Schlesinger said. "And, where possible, we made the forms fillable on-line and added drop-down boxes."

At the request of judges, a new, more detailed in forma pauperis application was drawn for use in district court proceedings. A longer form is used in connection with appeals.

All forms are available online at this link, provided by The Third Branch

Wednesday, May 20, 2009

New Kentucky Rules of Attorney Conduct

The Supreme Court of Kentucky on April 16th. announced comprehensive revisions to its Rules of Professional Conduct, to become effective July 1, 2009.

This is the first time in nearly 20 years that such vast changes have been made, and include a new rule that requires attorneys knowing of professional misconducts of other attorneys or judges to report then to the Court.

"The revisions reflect thoughtful changes that will bring Kentucky more in line with national standards for attorney conduct," said Chief Justice John Milton, "Our goal being to improve public confidence in our state’s legal profession by strengthening attorney accountability."

Major changes were also made to Ohio’s Rules of Professional Conduct were last month.

New Kentucky Rules
( Court’s announcement )

Ohio Court Rule Revisions

The Ohio Supreme Court and lawyers practicing in this state also have a number of Court Rules going into effect on July 1st., among them Rules of Appellate, Civil, Criminal, Juvenile Procedure, and Rules of Evidence as follows:
Rules of Superintendence 44-47 on public access to court records, which were originally slated to go into effect on May 1 but were rescheduled to allow more time for judges, court staff, and members of the public & the media become familiar with them, also now become effective on July 1st..(Here) The Court has an portal at the lower right-hand corner of its website with more information and a historical perspective on public records & open government.

Additionally, there are eleven "temporary rules of superintendence" governing the administration of the five common pleas commercial court dockets in the state.

"Open Discovery" in Ohio

"Open discovery" is essentially full disclosure of all evidence, reports, etc., between opposing parties in a legal action. In civil matters it's one story and pretty much matter of fact, but that's not the case in criminal cases where there's been debate between the factions for more than a decade. Prosecutors concerned with the safety of victims & witnesses want restraint, while defense attorneys demand disclosure citing circumstance when innocent defendants have been found guilty and convicted.

Jenny Roberts, then an acting assistant professor of law at the New York University School of Law, in a 2004 Fordham Urban Law Journal article, wrote that, then, "about one-third of the sates had relatively broad discovery rules or statutes modeled after ABA standards. But another dozen follow the highly restrictive federal rule which is premised in part on the idea that a defendant should not be entitled to witness names or statements for pretrial investigation, but rather only for cross-examination purposes should the case get to that stage."

The ABA endorsed "expanded" discovery in 1994, and Florida, the first state to do so, has had open discovery rules since 1968. New Jersey's discover laws are said to be some of the most liberal in the country. "Perhaps the strongest argument in favor of open discovery," a Cleveland Plain Dealer article last year said, "was that no place that has gone with the practice has ever gone back to the ways of secrecy."

Ohio? The current rule governing what evidence must be shared between attorneys in a criminal case, Rule 16, allows prosecuting attorneys to withhold certain police reports & witness statements. That may be about to change.

The Ohio Prosecuting Attorneys Association and Ohio Association of Criminal Defense Lawyers on May 1st. announced they had a mutually-arrived at proposal to reform Rule 16 ready for Supreme Court consideration. A copy of that draft is apparently unavailable at present, but the Justice Project, a non-profit, nonpartisan group, posted their model & recommendations in 2006 in their publication, "Expanded Discovery in Criminal Cases: A Policy Review." The Ohio Public Defenders’ Office has their proposal and addition information on their website.

The Supreme Court’s Rules of Practice & Procedures committee is said reviewing Rule 16 and expected to make its recommendation by fall.

This, however, isn’t the first time the Ohio Supreme Court’s looked at open discovery. It first proposed and filed amendments to Rule 16 with the General Assembly back in 1996, but that was withdrawn because it appeared as though they were going to be voted down anyway, according to a recent Toledo Blade article. The rules & procedure commission again in 2006 fashioned rule changes, but after opening that proposal for public comment it too eventually died without ever making it to the floor in Columbus.

Has open discovery’s time come to Ohio? Chief Justice Thomas Moyer told a press conference last month that more than 30 counties in the state already have some form of open file, open records policy. Late last year Cuyahoga County, one of those more vehemently in opposition to the expanded measures, adopted open discovery rules, its prosecutor’s office launching a new web-based case-management database that allows defense lawyers view, print, and download witness statements, police reports, and other documentation early this year. (Articles Here and Here; Cuyahoga’s new rule Here).

….. and on May 5th. a concurrent resolution was introduced and referred to the Senate Judiciary and Criminal Justice committees “requesting the Supreme Court to amend the Ohio Rules of Criminal Procedure to provide for open discovery.”

Friday, May 15, 2009

Supreme Court Juvenile Life Sentencing Update

Our post last Monday about the U.S. Supreme Court's agreeing to hear the two Florida juvenile life sentence cases in determining whether life in prison is an acceptable consequence for juvenile offenders, has more information that we'd like to pass along in anticipation of the Court's consideration this Fall.

Last Monday we mentioned CNN's having said that "outside of a death-penalty context, the high court has offered little recent guidance on how to treat the youngest of underage criminal defendants, and the appellate record for rapists younger than 15 is almost non-existent." An article on was passed along mentioning that the two focal-point cases were not the first time the Supreme Court had "been confronted with the question of juveniles spending their lives in prison. Last year, the justices declined to consider an appeal of a 30-year prison sentence for a teen who was 12 when he killed his grandparents in their South Carolina home." These provided starting points for an interesting trek.

Both Graham's and Sullivan's petitions for certiorari obviously contain a wealth of case precedent in support of their views and contentions – Sullivan's more because, along with his Eighth Amendment, "cruel & unusual punishment" claim, he also postulates "review of recently evolved 8th. Amendment claims where state courts have refused to."

ScotusWiki's entries for the two cases ( Graham and Sullivan ) mentions in pertinence that "The first post-Roper case to reach the Court testing the Eighth Amendment as it applied to long sentences for youths — Pittman v. South Carolina (07-8436) — was turned aside by the Justices last year. A then 12-year-old, Christopher Frank Pittman, had been convicted of a double murder. He was given a 30-year prison sentence, without possibility of a parole. The Court turned aside that case on April 14 of last Term, apparently unready to examine a lengthy sentence when the crime victim was slain."

Pittman's appeal to the South Carolina Supreme Court two years ago brought up the 8th. Amendment question of "cruel & unusual punishment" as applied to juveniles as do our current two cases. That court affirmed sentence and conviction.

In that decision, the Supreme Court of South Carolina observed with respect to the 8th. Amendment challenge, that, "the United States Supreme Court has instructed that the ‘clearest and most reliable objective evidence of contemporary values is the legislation enacted by the country’s legislatures.'" Atkins, 536 U.S. at 313 (quoting Penry v. Lynaugh, 493 U.S. 302, 331 (1989)). The court has additionally stated that the Constitution requires the court's own judgment to be brought to bear on the issue by 'asking whether there is reason to disagree with the judgment reached by the citizenry and its legislators.' Id. at 313."

"… Appellant overlooks the 'proportionality' bedrock of Eighth Amendment jurisprudence, which is equally important a principle as 'evolving standards of decency.' This case involved a brutal double murder. As the United States Supreme Court stated in Atkins: 'it is a precept of justice that punishment for crime should be graduated and proportioned to [the] offense.' 536 U.S. at 311 (quoting Weems, 317 U.S. at 367). To paraphrase what the Tenth Circuit stated in Hawkins, '[a]lthough [Appellant’s] culpability may be diminished somewhat due to his age at the time of the crimes, it is arguably more than counterbalanced by the harm [Appellant] caused to his victim[s].' 200 F.3d at 1284.

"To establish that evolving standards of decency preclude his punishment, [Appellant] bears the 'heavy burden,' of showing that our culture and laws emphatically and well nigh universally reject it." Harris v. Wright, 93 F.3d 581 at 583 (citing Stanford v. Kentucky, 492 U.S. 361, 373 (1989)). Appellant has not made such a showing."

Harris and Stanford were pre-Johnson/Roper death-penalty cases, Harris having been convicted of aggravated first-degree murder and sentenced to life imprisonment without parole under Washington Revised Code §10.95.030, which carried that as a mandatory sentence. (Statute was amended now exempting those under the age of 18). Stanford was convicted of murder, sodomy, robbery, and receiving stolen property when he was 17 years old, the Kentucky Supreme Court having upheld those convictions. His case was joined by that of Heath Wilkins, a 16 ½ -year-old Missouri boy found guilty of murder, "armed criminal action," and carrying a concealed weapon in the case cited above. The Supreme Court upheld both. (The Court later denied a writ of habeas corpus in 2002, which Justices Stevens, Souter, Ginsburg & Breyer dissented from finding the practice of executing juveniles "a relic of the past and inconsistent with evolving standards of decency in a civilized society." His sentence was commuted to life in prison in 2003, which he then unsuccessfully tried to appeal to the Kentucky Supreme Court in 2007, and the U.S. Supreme Court last year.)

At that point in time, and albeit with reference to the juveniles & the death penalty, the Supreme Court said, "Neither petitioner assets that his sentence constitutes one of 'those modes or acts of punishment that had been considered cruel and unusual at the time the Bill of Rights was adopted' [Ford v. Wainwright, 477 U.S. 477 (1986)]. Nor could they support such a contention… petitioners are left to argue that their punishment is contrary to the 'evolving standards of decency that mark the progress of a maturing society,' [Trop v. Dules, 356 U.S.86 (1958)] They are correct in asserting that this Court has 'not confined the prohibition embodied in the Eighth Amendment to 'barbarous' methods that were generally outlawed in the 18th. Century,' but instead has interpreted the Amendment 'in a flexible and dynamic manner.' [ Gregg v. Georgia, 428 U.S. 153 (1976)] In determining what standards have 'evolved,' however, we have looked not to our own conceptions of decency, but to those of modern American society as a whole…. 'Eighth Amendment judgments should not be, or appear to be, merely the subjective views of individual Justices; judgment should be informed by objective factors to the maximum possible extent.' [Coker v. Georgia, 433 U.S. 584 (1977)]."

Such has been part of the history, at least, of the issue. Flash forward to more modern times… some of this may have "fallen beneath the radars" of some of us:

  • The Ohio Supreme Court, on May 6, 2008, rules that “the imposition of a mandatory adult sentence of life imprisonment for a child rape committed when the defendant was himself 15 years old, but for which he was not prosecuted for until he had passed the age of 21, did not violate the defendant’s constitutional due process rights. [ State v. Warren, 2008 Ohio 2011 (Case) (Court Summary) ]

    In its consideration of the case, the Ohio 8th. District Court of Appeals in Cuyahoga County interpreted one of the assignments of error as a “cruel & unusual punishment” claim under the Eight Amendment. That court had said, “The life sentence imposed here was mandated by statute. ‘Severe, mandatory penalties may be cruel, but they are not unusual in the constitutional sense, having been employed in various forms throughout our Nation’s history.’ [ Harmelin v. Michigan, 501 U.S. 957 (1991)] Consideration of mitigating factors in sentencing (including the defendant’s chronological age) is not constitutionally required except when the death penalty is imposed. [ Rice v. Cooper, (Ca. 7) 148 F3d 747 (1998)]

  • The 4th Appellate District, Div. 3, in California on April 30th. voided the life without parole sentence of a 14-year-old boy convicted in 1981 in a kidnapping in which no one was injured, saying “because petitioner is the only known offender under the age 15 across the country and around the world subjected to an LWOP sentence for a non-homi-cide, non-injury offense, we conclude his severe sentence is so freakishly rare as to constitute arbitrary and capricious punishment violating the Eight Amendment..” (In re Antonio De Jesus Nunez, case G040377)

  • California Senate Bill 399, introduced February 26, 2009, and having been amended four times now, would “authorize a prisoner who is under 18 years of age at the time of committing an offense for which the prisoner was sentenced to life without parole to submit a petition for recall & resentencing to the sentencing court, established certain criteria to be considered when a court decides whether to conduct a hearing whether to grant the petition, and require the court to make findings within 90 days of the submission of a petition & hold a hearing if the court finds that those criteria are met as specified. The bill would also be retroactive.

  • The U.S. House of Representatives has a bill introduced on May 6, 2009 short-titled the “Juvenile Justice Accountability & Improvement Act,” which would require that “each state have in effect laws & policies under which each child offender serving a life sentence receives not less than once during the first 15 years of incrarceration, and not less than once every three years of incarceration thereafter, a meaningful opportunity for parole or other form of supervised release,” and require that “the Attorney General issue guidelines & regulations to interprete and implement” (the above) not later than 1 year after the date of enactment of the bill. [ H.R 2289 ]

Monday, May 11, 2009

Juvenile Life Sentences to U.S. Supreme Court

In September 2005, the Supreme Court declared the death penalty "cruel & unusual punishment" for juvenile offenders under the age of 18 and unconstitutional in Roper v. Simmons. This, the Court had said, by its "having established the propriety, and affirmed the necessity, of referring to 'the evolving standards of decency that mark the progress of a maturing society' to determine which punishments are so disproportionate as to be 'cruel & unusual.'"

"When a juvenile commits a heinous crime," the Court said, "the State can exact forfeiture of some of the most basic liberties, but the State cannot extinguish his life and his potential to attain a mature understanding of his own humanity. While drawing the line at 18 is subject to the objections always raised against categorical rules, that is the point where society draws the line for many purposes between childhood and adulthood and the age at which the line for death eligibility ought to rest."

Last Monday, it announced that it would consider whether sentencing juveniles to life in prison terms without parole was similarly unjust. ( See Sullivan v. Florida, 08-7621 and Graham v. Florida, 08-7412 )

Wikipedia's article on "life imprisonment" notes that "a few countries worldwide allow for minors to be given lifetime sentences with no provision for eventual release, (but) of these, only the United States actually has minors serving such sentences, according to an updated 2008 joint study by Human Rights Watch and Amnesty International." According to that study, while Ohio doesn’t have any minors serving life sentences at the time (2008), Indiana has two, and Kentucky five.

The Supreme Court abolished capital punishment for juveniles under the age of 16 in 1988 ( Thompson v. Oklahoma ) before eliminating it altogether with Roper in 2005, and it banned the death penalty for the mentally retarded in 2002 with Adkins v. Virginia. Now there is seen to be a growing consensus that there are numerous parallels said to be between Roper; Adkins, and the current cases. (i.e., see CNN articles Here and Here, the New York Times Here, and article Here )

Those articles refer to a number of studies & papers including those by:

The Supreme Court has held that for convicted felons committing another, or other, felonies, that life sentences do not constitute “cruel & unusual punishment,” but this hasn’t been applied to juvenile offenders before. “Outside of the death-penalty context,” CNN writes, “the Supreme Court has provided little recent guidance on how to treat the youngest of underage criminal defendants, and the appellate record is almost nonexistent.”

New Federal Statutory Deadlines

President Obama signed H.R. 1626 last Thursday amending 28 federal statutory deadlines, making them consistent with the time-computation amendments to the Rules of Appellate, Bankruptcy, Civil, and Criminal Procedures approved by the Supreme Court last March 26. (Announcement )

The new deadlines will be effective December 1, 2009

Supreme Court’s summary outline of amendments

Friday, May 08, 2009

Ohio Supreme Court upholds Statute of Fraud Requirements of Signed Agreements

The Ohio Supreme yesterday held that "a party's breach of an alleged promise to sign an agreement does not eliminate the requirement under Ohio's statute of frauds that a contract is enforceable only if it is in writing and has been signed by the party against whom enforcement is sought."

The case involved a proposed business arrangement between a group of three title companies collectively known as Olympic Holding Company LLC and a New York-based reinsurance company, ACE Capital Title Reinsurance Company, the Court's summary related. Over a period of months, the parties negotiated terms of a business venture in which the Olympic companies would jointly acquire ownership of a separate Columbus-based company, the Olympic Title Insurance Company (OTIC), and ACE would then enter into a joint venture with OTIC to provide a new integrated system of title insurance and reinsurance that would be marketed nationally.

After exchanging multiple drafts of a proposed reinsurance agreement with ACE, the Olympic Holding companies went forward with the purchase of OTIC. When they informed ACE that the acquisition was complete, ACE advised them that it was likely to be spun off by its corporate parents and was unlikely to proceed with the reinsurance agreement. The day after learning of ACE’s cancellation, the Olympic Group signed and sent its own draft of the residential reinsurance agreement to ACE for signature. ACE refused to execute the agreement; the Olympic companies sued ACE and its parent companies .

Justice Evelyn Lundberg Stratton, in the majority's opinion, wrote that while courts in a number of other jurisdictions have held that, under various circumstances, promissory estoppel may be used to remove an agreement from having to comply with the statute of frauds, "(W)e decline to adopt that exception under the circumstances of this case because it is both unnecessary and damaging to the protections afforded by the statute of frauds."

Justice Stratton noted that the purpose of the statute of frauds is to prescribe a clear standard of what is needed to form a contract, and to strongly motivate parties to follow those requirements by establishing that "unless the parties adopt the prescribed mode of manifesting their wishes, they will be ignored. The reason for ignoring them, for applying the sanction of nullity, is to force them to be self conscious and to express themselves clearly."

"Courts have long recognized that a signed contract constitutes a party's final expression of its agreement," wrote Justice Stratton. ... "Thus, the statute of frauds is necessary because a 'signed writing provides greater assurance that the parties and the public can reliably know when such a transaction occurs.' ... If promissory estoppel is used as a bar to the writing requirements imposed by the statute of frauds, based on a party's oral promise to execute the agreement, the predictability that the statute of frauds brings to contract formation would be eroded. Parties negotiating a contract would no longer know what signifies a final agreement. Promissory estoppel used this way would open contract negotiations to fraud, the very evil that the statute of frauds seeks to prevent."

Ohio "statute of frauds" is embedded in Ohio Revised Code Chapter 1335
Olympic Holding Co., L.L.C. v. ACE Ltd., 2009-Ohio-2057