Linda Greenhouse ends 30 years covering the Supreme Court. Her farewell retrospective—a must read.

Linda Greenhouse is retiring from the New York Times after covering the Supreme Court for 30 years. She will be teaching at Yale Law School and writing. Her retrospective on the Supreme Court is a must read. Click here

Recent Appellate Decisions - By: Burton A. Rose, Esquire

RECENT APPELLATE DECISIONS BY BURTON A. ROSE, ESQUIRE

On June 23, 2008, the Supreme Court of the United States decided the case of Greenlaw v. United States. The Court ruled that on direct appeal by a defendant challenging the reasonableness of his sentence, a Court of Appeals is not authorized to resolve the matter by ordering an increase in the defendant’s sentence. Absent an appeal by the Government or a cross-appeal, the appellate court has no authority to, on its own initiative, order an increase in the term of the sentence.

On June 25, 2008, the Supreme Court of the United States decided the case of Kennedy v. Louisiana. By a 5 to 4 vote, with Justice Kennedy writing the Opinion for the Court, it was held that the Eighth Amendment to the United States Constitution prohibits the imposition of a penalty of death for a person who has been convicted of the crime of the rape of a child where the victim did not die and the defendant did not intend for the victim to die.

On June 25, 2008, the Supreme Court of the United States decided the case of Giles v. California. By a 6 to 3 vote with Justice Scalia writing an Opinion for the Court, it was held that a defendant does not forfeit his Sixth Amendment right to object to the admission of an testimonial declaration at trial attributed to the victim of the homicide unless the prosecution establishes that the defendant had engaged in conduct that was designed to prevent the witness from testifying. Therefore, the Crawford v. Washington rule applies to bar the admission of testimony of a deceased witness unless the prosecution can prove that the defendant had the witness killed in order to prevent her from testifying.

On June 25, 2008, the Supreme Court of Pennsylvania decided the case of Commonwealth v. Dennis. The Court held that a defendant’s PCRA must be remanded to the trial court for further hearings where the defendant claimed that trial counsel provided ineffective assistance by failing to call an alibi witness. The court rejected the Commonwealth’s argument that since the witness would have only been corroborative, the testimony would have been cumulative since the defendant did present alibi testimony from the defendant’s father.

The Commonwealth Court has held that an appellant has not  preserved anyissues for appeal where he filed his Rule 1925(b) Statement in the lower court but neglected to serve the trial judge with the document. Commonwealth v. $766 U.S. Currency, 948 A. 2d 912 (Pa. Cmwlth. 200 . 

Privacy standards and the criminal law

A New York Times editorial suggests that standards relevant to suppression of evidence be adopted as a privacy standard for seizure of laptops at airports.  The Government and Your Laptop

New Administrative Procedure for 701 Consolidations

Troy Wilson, Chair of the Criminal Justice Section, wanted  to make the following announcement based on a new policy concerning 701 consolidations before jury waiver judges.  Now, if an attorney appears in court and requests a 701 consolidation date in front of a judge different than the one he or she is presently appearing before, that judge must now schedule the 701 consolidation hearing on the same day that the request has been made.  There are no more continuances.  The cases will/should then be transferred immediately to the “new” 701 consolidation judge who may then dispose of the case on that same day instead of waiting to obtain a new date for the 701 hearing.

Recent Appellate Decisions

RECENT APPELLATE DECISIONSOn June 16, 2008, the Supreme Court of Pennsylvania decided the case of Commonwealth v. Randy James Houck, 2008 WL 2414962. The issue in this case was whether a criminal defendant’s waiver of a jury trial can be rendered invalid when he is informed at a jury waiver colloquy of a range of sentences he could face if convicted which is shorter than the sentence he eventually receives.

In an Opinion by Justice Max Baer, joined by all the members of the Supreme Court, it was held that in order to be entitled to a remedy, the defendant must establish that he relied on the recitation of his sentence during the jury waiver proceedings in making his decision to agree to waive the right to a jury trial.

Mr. Houck was charged with Rape and related offenses in connection with a sexual assault on a young women. The defendant eventually agreed to waive his right to a jury trial and signed a written colloquy to that effect. In addition, the trial court conducted an oral jury waiver colloquy. Although the trial court explained the maximum potential sentence that the defendant faced for each offense, when the defendant, having being convicted of these offenses, was eventually sentenced by the trial court, he received an aggregate sentence (37 ½ to 75 years of imprisonment) which exceeded the range of sentences recited at the oral colloquy.

The Superior Court of Pennsylvania had vacated the defendant’s judgment of sentence and remanded for resentencing with instructions that the defendant should be resentenced within the range recited at the oral jury waiver colloquy. The Commonwealth then filed a Petition for Allowance of Appeal which the Supreme Court granted. The sole issue before the Court was whether the defendant’s jury trial waiver could stand where the trial court recited a range of possible sentences at the oral jury waiver colloquy that turned out to be less than the sentence the defendant actually received.

Justice Baer pointed out that a potential sentence is not one of the essential ingredients necessary for a defendant to understand the nature of the jury trial. However, the Supreme Court held that the voluntariness of a jury waiver can be undermined where the defendant is informed of a range of potential sentences at his jury waiver colloquy that is less than the sentence imposed. Nevertheless, the defendant cannot obtain relief unless he can demonstrate that his understanding of the length of the potential sentence “was a material factor in making the decision to waive a jury trial”. In that situation, the waiver of a jury trial is involuntary and cannot stand.

In Mr. Houck’s case, there was not sufficient evidence to establish that the defendant was focused on the length of his sentence when he waived his right to a jury trial. Therefore, the court reversed the Superior Court and reinstated the judgement of sentence.

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On June 19, 2008, the Supreme Court of the United States decided Indiana v. Edwards a 7 to 2 decision. Justice Breyer delivered the Opinion of the Court. Justices Thomas and Scalia dissented. ,

The issue in this case was whether the constitution forbids a State from insisting that a criminal defendant proceed to trial with counsel where a state court has found the defendant not mentally competent to conduct that trial himself, although the defendant may be mentally competent to stand trial if represented by counsel.

Under Faretta v. California, 422 U.S. 806 (1975), a criminal defendant has a constitutional right to proceed to trial without counsel when he voluntarily and intelligently elects to do so. However, the right of self-representation is not absolute. The court noted that in several cases, it had ruled that a defendant has no right to engage in serious and obstructionist misconduct by representing himself. The question in the Edwards case was whether a mental-illness related limitation on the scope of the self -representation right should exist.

Justice Breyer ruled that the constitution permits a State to limit a defendant’s self-representation right by insisting upon representation by counsel at trial where the defendant lacks the mental capacity to conduct his trial defense unless he is represented. The court noted that an individual may well be able to satisfy the standard for mental competence to stand trial (being able to work with counsel at trial) but yet be unable to carry out the basic tasks needed to present his own defense without the help of counsel.

Accordingly, the Constitution permits a state to insist upon representation by counsel for those defendants who are competent enough to stand trial but who still suffer from severe mental illness to the point that they are not competent to conduct trial proceedings by themselves. Justice Breyer’s Opinion will assure trial judges the authority to deal appropriately with cases where the mental competence of the defendant who seeks to represent himself is an issue.

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On June 12, 2008, the Supreme Court of the United States decided two cases involving the interpretation of the writ of habeas corpus, 28 U.S. Code §2241 with respect to the detention of individuals in connection with the ongoing war against terrorists. In Boumediene, et al v. Bush, in a 5-4 Opinion written by Justice Kennedy, the Court held that aliens who had been designated as enemy combatants and who are detained at the United States Naval Station at Guantanamo Bay, Cuba, do have the constitutional privilege of seeking a writ of habeas corpus and that the Detainee Treatment Act of 2005 is not an adequate and effective substitute for habeas corpus. The court stated that the Writ is “an indispensable mechanism for monitoring the separation of powers”, even where, as in this case, the petitioners are not American citizens. Therefore, under the judicial power of the federal courts, a writ of habeas corpus could be issued to support a grant of relief for such a defendant, even, if necessary, an order directing his release.

Justice Kennedy noted that some of these petitioners have been custody for six years with no definitive judicial determination as to the legality of their detention. Therefore, their access to the Writ is necessary in order to have a way to determine the lawfulness of their status, “even if, in the end, they do not obtain the relief they seek”. As Justice Kennedy stated, “the laws and Constitution are designed to survive and remain in force in extraordinary times. Liberty and security can be reconciled; and in our system they are reconciled within the framework of the law. The Framers decided that habeas corpus, a right of first importance, must be a part of that framework, a part of that law”.

On the same day, Chief Justice Roberts delivered the Opinion of a unanimous court in the case of Munaf , et al v. Gueran. That case concerned the availability of habeas corpus relief for U. S. citizens individuals who had voluntarily traveled to Iraq and were alleged to have committed crimes there and have been detained by the multi-national coalition forces. The Court held that the habeas statute extends to American citizens held overseas by American forces operating subject to an American chain of command. However, these petitioners were not entitled to relief because a federal court cannot grant an order that would interfere with the sovereign right of Iraq to prosecute these men for alleged violations of the law of Iraq. The Court held that there is nothing in the habeas law which would shelter the petitioners from a sovereign government that seeks to have them answer for alleged crimes committed in that country.

 

General Assembly recesses until September. Legislative Report for July 29.

1.  The State Budget has been passed and the General Assembly has recessed for the summer.  The House returns to session on September 15.  The Senate returns to session on September 16.

2.  The Senate has confirmed the nominations of Judge Jane Cutler Greenspan of Philadelphia to the Supreme Court;  Judges Robert Freedberg of Northampton County and John Cleland of McKean County to the Superior Court; and Former Secretary of Labor and Industry Johnny Butler to the Commonwealth Court.  They will serve until January 2010.  The news media reports that they have promised not to run for a full term.

3.  The following bills are on the House Calendar for September 15.

3a.  House Bill 5 provides for temporary and permanent transfers of prisoners between State and county prisons.  Different versions of the bill passed the House and Senate by unanimous votes.  The bill is before the House for concurrence of Senate amendments.

3b.  House Bill 6 provides for reform of the parole procedures, including victim participation in parole decisions, and parole guidelines which would be analogous to sentencing guidelines.   Different versions of the bill passed the House by a unanimous vote and the Senate by 49-1.  The bill is before the House for concurrence of Senate amendments.

3c.  House Bill 1543 provides for expungement of criminal records.  Generally, a court would have discretion to expunge convictions where the maximum sentence would be less than two years confinement.  Sex crimes and assaults could not be expunged.  The District Attorney would be allowed to maintain records of the convictions.   A similar bill, Senate Bill 232, passed the Senate unanimously on April 28 and was sent to the House Judiciary Committee.

3d.  House Resolution 559 calls upon the Supreme Court to establish a rule permitting jurors to be given written instructions as to each element of a crime and any relevant defenses to be used during jury deliberations.

4.  On June 23 the Senate amended House Bill 7 which provides for the transfer of a State prisoner who is seriously ill to a hospital, long term nursing home or hospice.  A different version of the Bill passed the House on April 7 by 185-16.  The Senate amendments require that the inmate have a prognosis of less than one year to live and provides for electronic monitoring at the new health care facility.

5.  On July 4, the House, by a vote of 202-1, concurred with Senate amendment to House Bill 4.  The bill concerns the adoption of guidelines for re-sentencing and parole.  The bill has been sent to the Governor for action.

6.  House 2592 was introduced on June 4 and sent to the Judiciary Committee.  It would allow parole authorities to require sex offenders to undergo polygraph examinations as a condition of State and county parole.

7.  House Bill 2639 was introduced on June 13 and sent to the Judiciary Committee.  It would allow the Department of Corrections to request a sentencing court to re-sentence an inmate to a State Intermediate Punishment program.

To access bills click http://www.legis.state.pa.us/index.cfm

Former Solicitor General to present Supreme Court Roundup

The Federalist Society presents its fifth annual United States Supreme Court Roundup Luncheon with the Honorable Paul D. Clement, former Solicitor General of the United States, July 15 at noon at the Union League.

Preregistration is required for this luncheon. Seating is limited, and walk-in registrations will not be accepted. Luncheon begins at 12:00 noon.

Cost: $55.00 per person. Firms or groups may reserve seating at $225 for a half-table (seats 4), $425 for a table of eight, or $525 for a table of ten.

Continuing Legal Education credit is available at no additional charge. This program is approved in Pennsylvania for 1 hour of substantive CLE credit.

For information contact Larry Wood at 215-981-4103 or WOODL@pepperlaw.com or Ron McNeil at 215-564-3999.

Deputy Mayor for Public Safety, Everett Gillison Addresses the Criminal Justice Section at Section Meeting

Deputy Mayor for Public Safety Everett Gillison, Esq., addressed the Criminal Justice Section at the section meetgin on June 24th. A former public defender for three decades, Gillison now oversees several City departments and programs including police, fire, prisons, emergency management and prisoner re-entry.

According to Deputy Mayor Gillison, Mayor Nutter is focusing on ways to reduce the prison population and prevent recidivism. He said that there is a need to rethink who should be in jail. The City prisons were designed for 6300 inmates, but currently hold 9300 prisoners, many of whom committed nonviolent crimes. He discussed a program to line-up jobs for inmates about to be released and provide supportive services once they begin working. He discussed a peaceful surrender program directed at persons charged with minor crimes who are wanted on bench warrants. The clergy are being involved in the surrender procedures.

Gillison said that groundbreaking will be in August for the new Youth Study Center to be built at 48th Street and Haverford Avenue. In late July or early August residents will be moved from the Youth Study Center to a termporary facility in East Falls.

Gillison discussed the installation of surveillance cameras through out Philadelphia and preservation of the surveillance tapes. He said he would be involved in discussions over counsel fees, and parity for the lawyers in the District Attorney’s, Defender’s and City Solicitor’s offices.

New Local Procedure: County Inmates with State Detainers

There is a new procedure for the 506 CJC State Detainer Program, for county inmates with state detainers awaiting a preliminary hearing. The program has now been expanded to include private counsel. To learn more about the procedure, please read the memorandum from Judge Presenza here.

(if the image of the memorandum appears sideways, just rotate it.  If you’re using Acrobat, click view, rotate view, rotate counterclockwise)

The Philadelphia County Criminal Court Report of Filings and Dispositions (Common Pleas Only) for May 2008 Has Been Posted

To view the report, click here.