Criminal Law & Process – Page 123 – Marquette University Law School Faculty Blog

Do the Justices Play Nicely Together?

Post author:Michael M. O'Hear
Post published:November 13, 2009
Post category:Criminal Law & Process U.S. Supreme Court

SCOTUS justices For the second autumn in a row, the federal public defenders here in Milwaukee were kind enough to invite me to speak on the U.S. Supreme Court’s criminal docket, reviewing last term’s cases and previewing the new term. The event is a great opportunity for me to think about patterns and themes that cut across individual cases. I plan now to recapitulate some of my obervations in a series of short blog posts over the next couple weeks. This is the first.

It is commonly thought that the Court is bitterly divided along ideological lines. In criminal cases, the stereotypical picture in recent terms would look like this: four conservative Justices (Scalia, Thomas, Roberts, and Alito) vote for the government, four liberal Justices (Stevens, Souter, Ginsburg, and Breyer) vote for the defendant, and Justice Kennedy in the middle gets to decide what the law is. The picture is not an attractive one, suggesting that most of the Justices decide cases on a knee-jerk basis, without really listening either to the advocates or to their own colleagues.

How well does the stereotype actually reflect reality? The answer depends on what type of criminal case you are talking about.

Seventh Circuit Criminal Case of the Week: If You Own a Gun, Don’t Steal Cable

Post author:Michael M. O'Hear
Post published:November 7, 2009
Post category:Criminal Law & Process Federal Criminal Law & Process Seventh Circuit

seventh circuit In 2005, Kevin Schultz pled guilty to one count of trafficking in counterfeit telecommunications instruments. His offense involved modifying telecommunications equipment for the purpose of stealing cable. His sentence? Two years on probation, including a period of home detention.

Two and a half years after his first conviction, federal agents searched Schultz’s home and found a shotgun. He was convicted of being a felon in possession of a firearm and sentenced this time to eighteen months in prison.

On appeal, Schultz argued that his telecoms offense, although a felony, did not expose him to liability under the felon-in-possession statute. He relied on an exception in the law for prior convictions “pertaining to antitrust violations, unfair trade practices, restraints of trade, or similar offenses relating to the regulation of business practices.” However, the Seventh Circuit rejected this argument and affirmed the conviction in United States v. Schultz (No. 09-1192) (Bauer, J.).

Pondering the Wisconsin Supreme Court’s Criminal Docket

Post author:Michael M. O'Hear
Post published:November 3, 2009
Post category:Criminal Law & Process Wisconsin Criminal Law & Process Wisconsin Supreme Court

Last week, I was delighted to participate in the Conference on the Wisconsin Supreme Court organized by Rick Esenberg. The panel I moderated reviewed some of the court’s most significant criminal cases last term. But “most significant” is a relative term, and I don’t think any of the panelists found the court’s recent criminal cases to offer anything especially bold or innovative. The court seems to be operating more in an error-correction mode than a law-declaration mode. Recent decisions generally do not announce new rules of law, but operate within established legal frameworks and decide cases based on the particularities of the facts presented. (Indeed, an exception to this trend, State v. Ferguson, 767 N.W.2d 187, drew a sharp rebuke from Justice Bradley, who characterized the majority decision as “an unbridled exercise of power.”) Notably absent is the “new federalism” exhibited in some earlier terms, in which the court interprets state constitutional rights in ways that are more protective than the analogous federal rights.

Fans of judicial minimalism should be happy with the court’s recent criminal decisions. So should fans of judicial collegiality: the court’s minimalist holdings produce few dissenting votes and (Bradley’s shot notwithstanding) a generally respectful tone in the few dissenting opinions. I wonder, though, if all of this minimalism and case-specific analysis provides sufficient clarity in the law for the police officers, lawyers, and trial-court judges working in the trenches of the criminal-justice system. Though much in vogue now, minimalism has its vices, too.