First Monday in October

They're back.

It's the First Monday in October (title caps because it's a special day like Christmas Day or Flag Day or the Day of the Dead) which means the Supremes are in session.  (Well, the session is done for the day, but you know what I mean.)

God help the Republic.

As everyone who writes generally about the Court (think mainstream media) keeps pointing out, this year's docket, at least as so far set, seems to have less focus on corporations and big civil cases than in the last couple of years.  (Though the grizzly banging on the door is the Affordable Care Act.)  Rather, this is supposed to be the year (except for the Affordable Care Act) of criminal law.

God help the Republic.

Adam Liptak in his preview of the court's year (with reference to the Affordable Care Act), says that the focus is on First Amendment and criminal law.  He quotes Eric Freedman, law prof at Hofstra, fan of the First Amendment and important player in capital defense and especially capital habeas circles.

The Supreme Court has positioned itself to improve the quality of the criminal justice process from beginning to end.

Well, I suppose there's some truth to that.  Of course, it's also positioned itself to damage the quality of the criminal justice process from beginning to end.  (Not to mention, so I won't, the Affordable Care Act which of course is/isn't constitutional.)

Anyhow, as the term begins, a brief look at what will be up for oral argument this week.

Reynolds v. U.S. is a narrow issue.  

Because of how scared we are of them, sex offenders have to register and then there are all those notification provisions.  Along with the state requirements that are usually what we talk about, there are federal ones.  Reynolds registered as he was supposed to in Missouri, but when he moved to Pennsylvania, he didn't.  The feds said he had to, and brought charges. Reynolds said that the law can't be made retroactive to him until the Attorney General adopts rules that say it is, and while there is such a rule, he says it wasn't properly adopted.  (Does this seem sufficiently narrow?) 

The thing about narrow issues is that they sometimes morph.  The John Roberts who appeared before the Senate Judiciary Committee for confirmation hearings a few years ago emphasizing "judicial modesty" and the importance of not reaching out to get at issues not presented would never let that happen.  That John Roberts, of course, does not sit on the US Supreme Court.  The one who does, the one who's Chief Justice, has a different approach.

Of course, this case may generate a ruling exceptionally narrow and of little significance.  On the other hand.

Howes v. Fields deals with two things the Five Who Decide don't much like: Miranda and habeas.

OK, it's not really about habeas, that's just how the case got to the Court.  Here's the set up.  Randall Fields was doing time in a local Michigan jail for disorderly conduct when the corrections officers took him to a conference room where a couple of deputy sheriffs interrogated him about a sex offense with a minor.  They didn't give him Miranda warnings.

The formal rule of Miranda is that when you're in custody and questioned, the cops have to give you the warnings or what you say can't be used in court (and yes, it's more complicated than that and there are exceptions).  Clearly, Fields was in custody (he was in jail, after all).  But was he in custody for Miranda purposes?  You know, the kind of custody where he couldn't just leave.  After all, he could have just left.  Except he couldn't have.  Except the deputies told him he could.  Except that they also told him he could later - once corrections officers came to take him back to his cell where he would/wouldn't be in custody.

My head hurts.

Michigan courts didn't see a problem here.

The district court and the 6th Circuit did.

SCOTUS?  The smart money is that Fields will lose.  Why?  Because the He's-a-Fucking-Sex-Offender Rule which says he should never get relief will likely trump Miranda which the Five Who Decide thinks should never apply anyhow.  Oh, and it's the 6th Circuit, which always gets reversed.

Maples v. Thomas is the Cory Maples case I've written about before.

He's the guy who got screwed by high priced lawyers at Sullivan & Cromwell who dropped the ball on his case.  Maybe it's so egregious that SCOTUS will give him another shot.

But rules are rules and when your lawyer screws up, even if you didn't choose the lawyer and didn't want the screw up - well, somebody has to die.  And it ain't going to be the lawyers from S & C.

Martinez v. Ryan is about the right to counsel.

Here's the basic rule (spoiler alert - I'm oversimplifying again).  You're entitled to a lawyer when you'recharged with a crime and can be locked up.  Once you're convicted, if you have an absolute right to an appeal, you're entitled to a lawyer for it.  If you have a right to a second appeal or any other sort of thing, you're not.  You may get one.  Courts might be generous.  The state might authorize it.  But you have no federal constitutional right.

Here's the other basic rule.  You have a right to effective assistance of counsel at that trial and from that lawyer on a first appeal, by the way.  You're not entitled to effective assistance from any other lawyer you might have.  The measure of effectiveness is preposterously low, but that's a different issue.

So here's what happened.  Luis Martinez was on trial and convicted.  He wanted to argue that he was denied effective assistance of counsel at trial.  The only way to do that under Arizona law was by a post-conviction proceeding, not by direct appeal.  He had a lawyer for that proceeding, but the lawyer didn't raise that issue.  He tried to raise it later, and the Arizona courts said that he should have raised it before, so he was out of luck.  He tried to argue that his post-conviction lawyer was constitutionally ineffective, but nobody gave a rats ass because he wasn't entitled to have that lawyer do even a marginally good job.

Except that was the only time he could complain about his constitutionally ineffective trial counsel.   Except he didn't.

Except that was because . . . .

Aw hell.  So far, Martinez has drawn the short straw every time.

There are other cases up for argument this week, but if you think I'm going to write about Medicaid or copyright or whether a religious school can discriminate against its teachers on the basis of the "ministerial" exception to the American's with Disabilities Act, you're nuts.

And of course, there's no need to mention the Affordable Care Act.

Anyway, they're back.

God help the Republic.

Rule of Law in Ohio

It was June last year when the Ohio Supreme Court put out its decision in State v. Bodyke holding that reclassification under the Adam Walsh Act was unconstitutional.  Today, they gave us the rest of the story, and it's good news again.

Probably some background is in order.

For years, convicted sex offenders in Ohio (and across the nation, for that matter, but that's a separate issue) were classified under some version of what was called Megan's Law as sexually oriented offender or habitual sexual offenders or sexual predators.  They were required to register with county sheriffs and in some cases to be subject to community notification of where they might be found.  The particular classification, fixed by judicial determination of the likelihood that the person would reoffend, controlled the onorousness and duration of registration and notification.

Then Ohio adopted its version of the Adam Walsh Act.  It changed the rules.

There were still three classifications with increasing degrees of onerousness, but they had no relationship to the likelihood of recidivism. More to the point here, Adam Walsh Act classifications were made retroactive.  Not only were they imposed on people who were convicted of offenses before the Act became law, they were also imposed on people who had been classified under Megan's Law.  The result:  some 26,000 people in Ohio who were already registered sex offenders as they had been classified under Megan's Law were suddenly reclassified under the Adam Walsh Act.  For the vast majority the reclassification made things worse.  Much worse.

In Bodyke, the Ohio Supremes said that the reclassification were unconstitutional.  Which should have settled things.

But the opinion seemed to leave some wiggle room about a subset of folks whose Megan's Law classifications were imposed not by a judge but by the county sheriff or, as the courts put it, "by operation of law."

Their situation would have been resolved if Bodyke had said that Adam Walsh was punitive.  If it was punitive, then it simply couldn't be applied to anyone whose offense occurred before the Act's effective date.  We'd made the argument.  The court ignored it.

Today though, in a 5-2 vote, they answered.  In State v. Williams the court said that Adam Walsh Act is punitive.

Really, it should have been self-evident.  But it should have been self-evident in 1998 when the Ohio Supremes decided that Megan's Law wasn't punitive.  It should have been self-evident in 2008 when the Ohio Supremes decided that a more onerous version of Megan's Law wasn't punitive.  And they should have said so last year in Bodyke.

Still, today they did.

Following the enactment of S.B. 10, all doubt has been removed: R.C. Chapter 2950 is punitive.

That's the Adam Walsh Act.  An honest recognition of what the General Assembly did.

Let's be clear.  Ohio can punish sex offenders pretty much as harshly as it wants as long as it doesn't order them executed.  At least, that's what the berobed ones at the US Supreme Court say.  What it can't do is punish them in new and exciting ways if the punishment wasn't authorized when they committed their crimes.  That's what the Ex Post Facto Clause of the US Constitution says.  And it's what, in somewhat different form, the Retroactivity Clause of the Ohio Constitution says.

The Williams court wisely skipped over the Ex Post Facto issue.  Williams  is based entirely on the Ohio Constitution.  And that's as it should be, for Ohio's Adam Walsh Act is quintessentially an Ohio mess.

There's a bottom line here that nothing to do with sex offenders or the Adam Walsh Act except as incidental actors.

The Columbus 7 (really, just the 5 of them who formed the majority) stepped back from the tough-on-crime, easy-to-say solution.  They engaged with the real world and spoke a basic truth.  Ohio's sex offender registration and notification law is in fact punishment.  What follows from that, and why Williams is far more important than just to those men and women it will help, is why I'm carrying on today.

Because it's a vote for the Rule of Law over the Law of Rule.

Are you sure you live at your house?

So you look in your mailbox and there's a card from the county sheriff telling you that a registered sex offender living nearby, one dangerous enough that the neighbors must be notified. (Just what the neighbors are supposed to do, other than burning down the offender's house, is an open question, but I digresss.) The neighbors get the card, too.

So who is this evildoer? Which neighber should you shun - or shoot?

Ooops. It's you. Or more accurately, it's a person living at your address - except you're the only one living there, and you're a 67-year-old, law abiding citizen. You're not a 23-year-old sex offender. Whoever that is, he doesn't live at your house. Never did.

That's what happened to a man in Lucas County. You can read about it here or watch the TV news story here.

It's a sure thing. There are some 900 registered sex offenders in Lucas County. There's one deputy sheriff to track them. You think there won't be mistakes? Sorry, but we didn't mean to screw you over this way.

We know that the sex offender registration and notification laws don't actually protect anyone. We know they do little besides make it harder for sex offenders to find jobs, get settled living arrangements, become or remain productive members of society.

And now, as Paul Harvey used to say, we know the rest of the story. Innocent people, wholly innocent people, get shamed and tarnished because, well, because shit happens.