More “Bullcoming”? The Court Courts Confusion in Confrontation

In some ways I should be grateful for doctrinal train wrecks. Messy case law provides endless excuses for writing articles and blog posts as well as delivering lectures that purport to see “the way” through the swamp. Like a child’s kaleidoscope, such cases offer something different for everyone to see, and no one is clearly wrong. Yet Supreme Court opinions are not solely intended for the entertainment of academics or the bewilderment of law students and lawyers.

Of the three metaphors I used in the preceding paragraph, a “train wreck” is the most apt way to describe Michigan v. Bryant, the Supreme Court’s latest attempt to illuminate the interrelationship between the hearsay rules of evidence and the Sixth Amendment’s confrontation right. “Swamp” and “kaleidoscope” are apt, but “train wreck” best captures the real cost of confusion. Bryant not only failed to illuminate a much-rumored “dying declaration” exception to the confrontation right, it also raises considerable confusion about what constitutes the “testimonial hearsay” that is protected by the confrontation right in the first place. For the defense lawyers and prosecutors who must eat this mush (fourth metaphor) every day, you have my best wishes and these words of solace.

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SCOTUS Says Judge May Consider Post-Sentencing Rehabilitation at Resentencing

In a new decision earlier today, Pepper v. United States (No. 09-6822), the United States Supreme Court ruled that federal district judges may consider post-sentencing rehabilitation when a case is remanded for resentencing.  This may sound like a very technical question of criminal procedure, but the facts in Pepper nicely illustrate the human dimension to the question.  Pepper was convicted of meth trafficking and faced a Guidelines sentence of 97-121 months.  The judge departed downward, however, and imposed a sentence of 24 months.  In June 2005, the Eighth Circuit reversed and remanded for resentencing.  In the interim, Pepper completed his 24 months and was released.  In May 2006, the district held a resentencing hearing, at which much evidence was presented of Pepper’s successful post-sentencing rehabilitation, including completion of drug treatment, commencement of college courses, and part-time employment.  Pepper’s probation officer recommended that the original sentence be reinstated, and the district judge agreed.  The government appealed, and the Eighth Circuit again reversed, ruling that post-sentencing rehabiltiation was an impermissible sentencing factor.  The case then bounced around inconclusively in the court system for several years before finding its way to the Supreme Court.  Pepper, still free, has apparently continued to do quite well in school and work.  The question now is whether he must nonetheless be returned to prison after five years in the community, which would likely wreck much of what he has accomplished for himself and his family.

In holding that post-sentencing rehabilitation is a permissible consideration at resentencing, the Court addressed a couple of notable legal questions.  What is perhaps most remarkable about Pepper, however, is not the legal analysis, but the prefatory rhetoric with which it was framed.

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California Parole May Be Broken, But Federal Courts Cannot Fix It

By some curious coincidence, at about the same time that Jonathan Simon was explaining in his Barrock Lecture yesterday that parole has effectively become unavailable in California in homicide cases, the United States Supreme Court was overturning a pair of Ninth Circuit decisions that would have established a basis for federal-court review of parole denials.

The California parole statute indicates that the state Board of Prison Terms “shall set a release date unless it determines that . . . consideration of the public safety requires a more lengthy period of incarceration.”  According to the California Supreme Court, the statute requires that there be ”some evidence ” in support of a conclusion “that the inmate is unsuitable for parole because he or she currently is dangerous.”  As Simon discussed, this requirement of some evidence of current dangerousness has been applied by the state courts such that the state can justify a parole denial in nearly any case. 

The two cases decided by the Court yesterday in Swarthout v. Cooke (No. 10-333) nicely illustrate Simon’s point. 

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