Federal Criminal Law & Process – Page 40 – Marquette University Law School Faculty Blog

Seventh Circuit Criminal Case of the Week: Silence and Consent

Post author:Michael M. O'Hear
Post published:July 12, 2009
Post category:Criminal Law & Process Federal Criminal Law & Process Seventh Circuit

seventh-circuit2 In 2006, Jarrett James robbed the same bank in Middleton, Wisconsin, on two different occasions, getting away with about $120,000. He was later apprehended, convicted in federal court, and sentenced to 42 years in prison. His appeal centered on the government’s warrantless seizure of a safe from his mother’s home. The safe contained a gun matching a description of the weapon used in one of the robberies. When the government sought to use the gun as evidence against him at trial, James argued unsuccessfully that the gun should be suppressed because it was obtained in violation of his Fourth Amendment protection against unreasonable searches and seizures.

In United States v. James (No. 08-3327), the Seventh Circuit (per Judge Flaum) also rejected the Fourth Amendment claim and affirmed James’ conviction. Specifically, the court held that the seizure complied with the Fourth Amendment because James’ mother consented to a police officer taking the safe. The holding is notable because James’ mother never expressly agreed to the seizure; the case thus illustrates circumstances in which Fourth Amendment consent may be inferred from silence. The case also raises interesting questions regarding the mother’s motivations and the underlying parent-child dynamics.

Seventh Circuit Criminal Case of the Week: Another Questionable Statement by a Prosecutor

Post author:Michael M. O'Hear
Post published:July 3, 2009
Post category:Criminal Law & Process Federal Criminal Law & Process Federal Sentencing Seventh Circuit

seventh-circuit On several occasions recently, the Seventh Circuit has been critical of statements made by prosecutors to jurors. (See, for instance, my posts here, here, and here.) Another questionable comment by a prosecutor was the subject of this week’s decision in United States v. Myers (No. 07-3658) (Manion, J.).

Myers was tried on arson charges. During closing arguments, defense counsel highlighted the fact that gasoline was not found by investigators on the floor of the building that Myers allegedly burned down. In response, the prosecutor stated:

[A]ny speculation on the part of [defense counsel] about why or why there wasn’t gasoline can be easily explained by the fact that there were firefighters that were in there that night trying to extinguish that fire with water. Water has a tendency to sweep through and remove all sorts of different things that might have been on the ground. So, ladies and gentlemen, that’s an easy explainable different part of what [defense counsel] was trying to suggest.

On appeal following his conviction, Myers challenged this statement as prosecutorial misconduct.

In addressing Myers’ argument, the Seventh Circuit noted that the government was free to argue “the mere possibility that water could have cleaned or diluted the surface of the carpet.” The problem was that “the government did not couch its argument in such hypothetical terms.”

Explaining Sentences in Wisconsin and Federal Court

Post author:Michael M. O'Hear
Post published:July 1, 2009
Post category:Criminal Law & Process Federal Criminal Law & Process Federal Sentencing Legal Scholarship Wisconsin Criminal Law & Process Wisconsin Supreme Court

I have a new paper on SSRN entitled “Appellate Review of Sentence Explanations: Learning from the Wisconsin and Federal Experiences.” As I observed in a recent post, I’ve become very interested in the way that sentences are explained to defendants, and how appellate review of explanations can potentially contribute both to procedural justice goals and to substantively better sentences. My forthcoming article in the Florida State Law Review focuses on “explanation review” in the federal system. The new paper focuses on the contrasting experience in Wisconsin and proposes a general framework for explanation review that blends the best features of the Wisconsin and federal systems.

As I see it, the basic flaw of the federal system is to permit sentencing judges to avoid any explicit engagement with the purposes of punishment if they impose a sentence within the recommended guidelines range. In a sense, the basic flaw of the Wisconsin system is the reverse: the Wisconsin Supreme Court permits sentencing judges to avoid any explicit engagement with the state sentencing guidelines (or any other objective benchmark); little more is required than an explanation that expressly invokes the purposes of punishment and references a few case-specific facts. My proposal seeks to promote engagement with both guidelines and purposes.

I presented the paper earlier this month at the Marquette Criminal Appeals Conference. It will appear in a symposium issue of the Marquette Law Review this winter. The abstract appears after the jump.