Matthew T. Mangino
The Pennsylvania Law Weekly
July 15, 2016
The momentum for criminal justice reform, which was so promising in Congress early in the year, has fizzled out.
The Sentencing and Reform Act was to update federal mandatory minimum sentences, among other things.
Senate Judiciary Committee Chairman Chuck Grassley, R-Iowa, told RealClearPolitics.com, "I don't see how it gets done before" July 15, referencing the day the senators depart from Washington and won't return until after Labor Day. "It's a real big disappointment to me." After Labor Day there is little chance that anything will get done with the election looming.
As a result, this year any criminal justice "reform" comes the old-fashioned way—through the U.S. Supreme Court. This spring, the court released a flurry of criminal justice decisions, somewhat obscured by titillating decisions on abortion, immigration and affirmative action.
The high court did delve into a couple of jury-related questions, a couple Fourth Amendment cases, sentencing and a corruption decision.
This is by no means an exhaustive list of the court's treatment of criminal justice issues, but an examination of a handful of decisions that might be enlightening.
In Foster v. Chatman, 578 U.S. (2016), decided on May 23, the court reversed a capital murder conviction, finding that the Georgia prosecutors' "two peremptory strikes on the basis of race are two more than the Constitution allows."
Timothy Foster was 18 years old when he was arrested for the murder of a 79-year-old widow and former elementary school teacher. Foster is African-American, while the victim was white. Turned in by his girlfriend, Foster admitted to the crime. But there were questions about his limited-intellectual capacity and whether he had an accomplice.
When the case went to trial all of the black members of the jury pool were removed. Foster's trial came only a year after the court's landmark decision in Batson v. Kentucky, 476 U.S. 79 (1986). Batson was intended to eliminate racial bias in jury selection.
The 1986 ruling set up a three-step process for testing complaints about race-based use of peremptory strikes.
First, the accused has to show membership in a specific racial group. Second, prosecutors need to offer nonracial reasons for removing the juror. Third, the judge must decide whether, taking everything into consideration, the defense proved a racial bias.
During jury selection in Foster's case, one black juror was dismissed for cause, and prosecutors eliminated the other four with peremptory challenges, offering a variety of nonracial reasons accepted by the presiding judge.
In 2006, nearly 20 years after his conviction, Foster's lawyers obtained the prosecution team's jury selection notes under the Georgia Open Records Act. The name of each potential black juror was highlighted on four different copies of the jury list and the word "black" was circled next to the race question on questionnaires for the black prospective jurors. Three of the prospective black jurors were identified in notes as "B#1," "B#2," and "B#3."
The high court granted Foster a new trial.
In Lynch v. Arizona, 578 U.S. ___ (2016), decided May 31, another capital case, the state put the defendant's future dangerousness at issue and acknowledged that his only alternative sentence to death was life imprisonment without parole. The Arizona high court concluded that the defendant had no right to inform the jury of his parole ineligibility. The U.S. Supreme Court disagreed.
In Simmons v. South Carolina, 512 U. S. 154 (1994), a capital defendant's future dangerousness was at issue, and the only sentencing alternative to death available to the jury was life imprisonment without possibility of parole. The court ruled that the due process clause entitles the defendant to inform the jury of his parole ineligibility, either by a jury instruction or in arguments by counsel.
A Pennsylvania case was prominently among the high court's decisions this spring. In Williams v. Pennsylvania, 579 U.S. ___ (2016), decided June 9, the court held that due process required that Pennsylvania Supreme Court Chief Justice Ronald Castille recuse himself from the capital defendant's post-conviction challenge where Castille had been the district attorney who gave his official approval to seek the death penalty in the case.
The court stated: "Under the due process clause there is an impermissible risk of actual bias when a judge earlier had significant, personal involvement as a prosecutor in a critical decision regarding the defendant's case." It went on to hold that the justice's authorization to seek the death penalty against the defendant constituted significant, personal involvement in a critical trial decision.
In Utah v. Strieff, 579 U.S. ___ (2016), decided June 20, the defendant was stopped along the street without reasonable suspicion. The defendant complied and the officer relayed the defendant's information to a police dispatcher, who reported that the defendant had an outstanding arrest warrant for a traffic violation. The officer then arrested the defendant pursuant to the warrant. When a search incident to arrest revealed methamphetamine and drug paraphernalia, the defendant was charged and convicted.
The Utah Supreme Court reversed and held that the evidence was inadmissible.
The U.S. Supreme Court reversed. The court began by noting that it has recognized several exceptions to the exclusionary rule, three of which involve the causal relationship between the unconstitutional act and the discovery of evidence. "Evidence is admissible when the connection between unconstitutional police conduct and the evidence is remote or has been interrupted by some intervening circumstance, so that the interest protected by the constitutional guarantee that has been violated would not be served by suppression of the evidence obtained."
The court also took up an alcohol-testing incident to an arrest for driving under the influence. In Birchfield v. North Dakota, 579 U.S. ___ (2016), decided June 23, the court held that while a warrantless breath test of a motorist lawfully arrested for drunk driving is permissible as a search incident to arrest, a warrantless blood draw is not. The court concluded: "Because breath tests are significantly less intrusive than blood tests and in most cases amply serve law enforcement interests, we conclude that a breath test, but not a blood test, may be administered as a search incident to a lawful arrest for drunk driving."
The U.S. Supreme Court overturned the political corruption conviction of former Virginia Gov. Robert F. McDonnell.
McDonnell received more than $175,000 in loans and gifts—including a Rolex watch, vacations and partial payment of his daughter's wedding reception from a Richmond businessman.
The gifts did not violate Virginia law, but federal prosecutors alleged that in exchange for the gifts, McDonnell engaged in official acts to arrange meetings for the businessman and hosted a reception at the governor's mansion for a new product launch.
Although Chief Justice John G. Roberts Jr. tried to distance himself from the conduct of McDonnell, his concern was clear—the term "official acts" could cover almost any action a public official takes.
In McDonnell v. United States, 578 U.S. __ (2016), decided June 27, Roberts wrote, "Conscientious public officials arrange meetings for constituents, contact other officials on their behalf, and include them in events all the time." He continued, "The basic compact underlying representative government assumes that public officials will hear from their constituents and act appropriately on their concerns—whether it is the union official worried about a plant closing or the homeowners who wonder why it took five days to restore power to their neighborhood after a storm."
In Betterman v. Montana, 578 U.S. __ (2016), decided May 19, the Sixth Amendment's speedy trial guarantee does not apply to the sentencing phase of a criminal prosecution. The defendant argued that the 14-month gap between conviction and sentencing violated his speedy trial right. For inordinate delay in sentencing, although the speedy trial clause does not govern, a defendant may have other recourse, including, in appropriate circumstances, tailored relief under the due process clauses of the Fifth and Fourteenth amendments.
Finally, for those foolish enough to think that reform could somehow be spurred by the U.S. Supreme Court there is Taylor v. United States, 578 U.S. __ (2016), decided June 20. Instead of limiting the federal government's reach in local criminal matters, the court expanded the reach.
As summarized by Scotusblog.com, Taylor holds that, "Because the Hobbs Act criminalizes robberies and attempted robberies that affect any commerce 'over which the U.S. has jurisdiction,' the prosecution in a Hobbs Act robbery case satisfies the act's commerce element if it shows that the defendant robbed or attempted to rob a drug dealer of drugs or drug proceeds."
So much for reform, prosecutors will be further clogging federal prisons with local thugs who prey on local drug dealers.
Special to the Law Weekly Matthew T. Mangino is of counsel with Luxenberg Garbett Kelly & George. His book "The Executioner's Toll," 2010, was released by McFarland Publishing.