Criminal Law & Process – Page 71 – Marquette University Law School Faculty Blog

Florence v. Board: With Proactive Policing at Issue, Supreme Court Backs Discretion

Post author:Michael M. O'Hear
Post published:June 7, 2012
Post category:Constitutional Law Criminal Law & Process Public U.S. Supreme Court

I’ve been working through my backlog of reading from the academic year, including the Supreme Court’s April decision in Florence v. Board of Chosen Freeholders of County of Burlington. This is the decision in which the Court upheld the use of routine, suspicionless strip searches of individuals arrested and jailed for minor offenses.

It strikes me that part of what was really at issue in the case went unmentioned by both the majority and the dissent. The case is framed on both sides as being about corrections administration, but it is perhaps just as much about policing – how much discretion are we going to give police to detain citizens and impose on them the humiliation, stigma, and danger of incarceration with a general jail population. This discretion seems a powerful tool in support of proactive, crime-preventive policing, but it is also prone to abuse and seems hard to reconcile with ideals like checks and balances and “innocent until proven guilty.”

Writing for the Florence majority, Justice Kennedy presented the case as a conventional prisoner rights case.

Another Habeas Slap-Down From the Supreme Court; Where Is Habeas Law Heading?

Post author:Michael M. O'Hear
Post published:June 1, 2012
Post category:Criminal Law & Process Federal Criminal Law & Process Public U.S. Supreme Court

The Supreme Court summarily overturned yet another habeas grant earlier this week in Coleman v. Johnson (No. 11-1053). Johnson was convicted in Pennsylvania state court as an accomplice and co-conspirator in a murder. Without getting into all of the details, let’s just say that the state’s case against Johnson was circumstantial and something less than airtight. Johnson thus sought to have his conviction overturned in state court on the ground that the evidence was insufficient to support the jury’s verdict, invoking Jackson v. Virginia, 443 U.S. 307 (1979). The state courts rejected this claim, as did a federal district court, but the Third Circuit reversed.

The Supreme Court overturned the Third Circuit’s decision in a brusque per curiam opinion.

SCOTUS Decides Blueford, Declines Opportunity to Tighten Up Double Jeopardy “Manifest Necessity” Rule

Post author:Michael M. O'Hear
Post published:May 25, 2012
Post category:Constitutional Law Criminal Law & Process Public U.S. Supreme Court

On some apparently flimsy evidence of intent to kill, the State of Arkansas prosecuted Alex Blueford for the capital murder of his girlfriend’s one-year-old son. After deliberating for some time, the jury reported that it had unanimously voted to acquit on both capital murder and a lesser-included murder charge, but was deadlocked on another lesser-included offense, manslaughter. The judge sent the jurors back to deliberate further. Meanwhile, Blueford requested that the jury be given a new verdict form on which it could enter a partial verdict of acquittal on the greater offenses. The judge declined and, after another half hour of fruitless deliberations, declared a mistrial.

Can Blueford now be retried in front of a new jury on the capital-murder charge? The prosecutor announced an intention to try, and Blueford predictably objected on double jeopardy grounds. Yesterday, the United States Supreme Court overruled his objections, clearing the path for a second trial.