Confrontation Avoidance? Part I: A Good Article to Read While Waiting

Like nearly every criminal lawyer, I eagerly await – and wait and wait – for the Supreme Court’s long overdue decision in Melendez-Diaz v. Massachusetts (07-591), the only case outstanding from the Court’s November sitting (per SCOTUSBLOG).  The case addresses the prosecution’s use of crime laboratory reports against the accused without testimony by the person who performed the analysis and wrote the report.  We need not get bogged down in the constitutional niceties at present, if only because its delayed appearance renders the case’s auguries especially hard to read.

So while we wait for a case that is certain to affect a staggering percentage of criminal cases, both pending appeal and awaiting trial, I highly recommend J. Thomas Sullivan’s timely  article, Crawford, Retroactivity, and the Importance of Being Earnest, 92 Marq. L. Rev. 231 (Winter 2008).  To grossly oversimplify things, in 2004 the Supreme Court held its nose and unceremoniously dropped 25 years of case law (and countless law review articles) into law’s dumpster. The discarded doctrine loosely regulated the prosecution’s use of hearsay under the Sixth Amendment’s confrontation clause; its flaccid “reliability” approach had green lighted nearly all forms of hearsay imaginable (and then some).

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Supreme Court Weighs in on Issue Preclusion in Criminal Cases

supreme_court_buildingThe Supreme Court managed to reach a unanimous decision today in a death penalty case, Bobby v. Bies. Back in 1996, while reviewing Bies’ sentence, the Ohio Supreme Court noted that the defendant’s “mild to borderline mental retardation merit[s] some weight in mitigation,” but affirmed his sentence anyway.  Six years later, of course, the United States Supreme Court ruled in Atkins v. Virginia that the Eighth Amendment bars execution of the mentally retarded.  The Ohio courts sensibly responded to Atkins by ordering a hearing to determine whether Bies was indeed retarded for Eighth Amendment purposes.  But Bies preempted the hearing by persuading a federal court that the issue had already been decided in his favor by the Ohio Supreme Court and that relitigation was precluded by the Double Jeopardy Clause.  After this decision was affirmed by the Sixth Circuit, the Supreme Court today reversed, holding there was no Double Jeopardy bar to the proposed Atkins hearing.

A couple of reactions.  First, as a unanimous decision in such a politically charged area as the death penalty, Bies is a nice reminder — amidst the high emotions and free-flowing hyperbole surrounding the Sotomayor nomination — that justices from across the ideological spectrum can and (at least at times) do set aside policy preferences to reach consensus right answers.

Second, although I’m pretty well convinced the Court got the right answer with respect to Bies, the opinion swept more broadly than it had to, perhaps unnecessarily limiting the Double Jeopardy issue preclusion doctrine. Is this one of those instances of “easy cases make bad law”?

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Seventh Circuit Criminal Case of the Week

seventh-circuit1With only one new opinion in a criminal case, there’s not much to choose from.  Unfortunately, United States v. Sainz-Preciado (No. 07-3706) was a fairly routine case that broke no new legal ground.  In its opinion, the Seventh Circuit (per Judge Tinder) affirmed the defendant’s 262-month sentence for cocaine trafficking over various objections to the way the guidelines sentence was calculated and imposed.

One aspect of the case merits at least brief comment.  The defendant was awarded only a two-point, not the possible three-point, reduction in offense level under the sentencing guidelines for “acceptance of responsibility.”  The third point requires a motion from the government, and the government did not make such a motion for Sainz-Preciado.  Normally, defendants who enter a timely guilty plea, as Sainz-Preciadio did, receive the full acceptance benefit.  However, Sainz-Preciado was penalized by the government for contesting his responsibility at the sentencing hearing for drug deals that he was not even charged with.  This is a nice reminder for defense counsel of the perils of challenging “relevant conduct” at sentencing — and, to invoke one of Justice Scalia’s favorite themes, of the extent to which the guidelines system has replaced the common-law values of adversarial testing of evidence with the bureaucratic values of efficient case-processing.

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