In 1992 Michael Bies was convicted of the aggravated murder, kidnapping, and attempted rape of a ten-year-old boy in an Ohio court. During the penalty phase it was brought up as a mitigating factor that Bies had a mild to borderline case of mental retardation. But the jury found that aggravating circumstance, particularly his tendency towards violence outweighed the mitigating circumstance and recommended the death penalty which the judge imposed. On appeal to the Court of Appeals and the Ohio Supreme Court the death penalty was upheld. Bies then filed a petition asking to be spared the death penalty due to his retardation. The appeal was denied by both the Ohio Court of Appeals and the state Supreme Court.

Shortly after Bies filed a writ of habeas corpus in Federal Court the Supreme Court decided Atkins v. Virginia. In Atkins the court decided that the Eighth Amendment prohibited the execution of the death penalty on a retarded person. But it did not decide, or provide guidance on, who was too retarded to kill.

Bies then filed an action in the Ohio trial courts to prevent the execution of the death penalty. He filed a motion for summary judgment. It was denied and the trial court ordered a complete hearing. Bies appealed the decision to the Ohio Supreme Court, without success.

He then went into the Federal Court to get an order mandating that the hearing in state court be prevented on double jeopardy grounds. He argued that since his retardation was proved during the sentencing phase of his trial holding another hearing on the issue would violate his Eighth Amendment right not to be placed in double jeopardy. The District Court and the Sixth Circuit Court of Appeal agreed with him. The State of Ohio appealed to the Supreme Court and in Bobby, Warden v. Bies the Supreme Court reversed the decision of the Sixth Circuit, finding that the Ohio court’s proposed hearing on Bies retardation did not violate the Eighth Amendment and it complied with Atkins.

Bies’ theory was that since his mental retardation was a mitigating factor at trial, to decide it again would place him in double jeopardy. Such a theory is called issue preclusion since it prevents the same issue from being litigated twice. The Supreme Court disagreed. First, according to Justice Ginsburg’s unanimous decision, Bies was not placed in double jeopardy since the State of Ohio was not trying to increase his sentence it was merely trying to impose the sentence previously ordered. Second, mental retardation for the purpose of mitigation and mental retardation for the purpose of Atkins are two discrete issues and a finding in one does not mandate the same finding in the other. Finally, the Supreme Court ruled that issue preclusion is only available to a prevailing party who wants to maintain his/her decision. In the case of Bies he did not prevail at sentencing and therefore cannot now claim issue preclusion. In fact, at sentencing where his retardation was considered a mitigating factor it was outweighed by aggravating factors. So he does not have an issue which he won and for which he is afraid the State will obtain a reversal. In fact even if it had not been considered a mitigating factor at trial he could have gotten the same sentence.

Furthermore, the Supreme Court was clearly uncomfortable with the lower Federal Courts intervening in the Atkins process before the state court made a final decision. So we can probably expect the matter to return to the Federal Courts after a decision is made by Ohio courts and appealed to the State Supreme Court.

In Michigan v. Jackson the Supreme Court held that if a defendant asserts his/her right to counsel at an arraignment or similar hearing any waiver of the right to have counsel present when the police initiate an interrogation is considered invalid. In Montejo v. Louisiana the Supreme Court yesterday overruled Jackson

In Montejo, a murder case, the defendant remained quiet while the Louisiana Court at what it calls a 72 hour hearing automatically appointed counsel. But before counsel could meet with the client the police got the defendant to show the police where the murder weapon was located. While the defendant was helping the police find the weapon and after Miranda warnings were given and waived the defendant wrote a letter to the family of the victim apologizing for killing the victim. Over objection this letter was read at trial and the defendant was convicted of murder.

Under a strict reading of Jackson the facts in Montejo do not apply since there was no request for counsel. But the Supreme Court was worried about the uniform application of the law, since the states divide with approximately half requiring a defendant to request counsel and approximately half automatically appointing counsel. The rule of law should not depend on whether the state requires a request or automatically appoints counsel.

But the underlying reason for Jackson, according to the Court, the prevention of badgering by the police once a defendant requests counsel is not applicable in those states that automatically appoint counsel. Furthermore the Court found in an opinion by Justice Scalia that defendants are sufficiently protected by Miranda, which requires that defendants be told that they have a right to the presence of counsel at an in custody interrogation, Edwards v. Arizona, which held that once a defendant had asserted his/her Miranda rights further interrogation could not occur until an attorney was appointed, and Minnick v. Mississippi which held that the attorney must actually be present at any interrogation after the defendant asserts his/her Miranda rights. Weighing the injury to the truth finding function of our courts against the protection of Fifth and Sixth amendment rights provided by Miranda, Edwards, and Minnick the majority of the Court found that Jackson’s protection of the defendant’s rights was outweighed by society’s need for valid confessions.

Justice Stevens, in dissent, points out that the majority misunderstand the basis for Jackson. It is not based upon the Fifth Amendment need to protect the defendant from badgering as is Edwards, but rather it is based on the Sixth Amendment need to ” ‘protec[t] the unaided layman at critical confrontations with his adversary,’ ” Unlike Edwards, and like Jackson, Montejo involves post arraignment police interrogation. It is only at arraignment that the Sixth Amendment right to counsel is incurred. While Justice Stevens agrees that the Louisiana Supreme Court does a great disservice to the Supreme Court’s interpretation of Jackson. He would merely override the Louisiana Supreme Court’s decision and he would maintain the ruling of Jackson under the rule of stare decisis, particularly in light of the fact that none of the parties asked that it be overruled.

New York joined Oregon and Washington in finding that their state constitutional bans on illegal search and seizure prevents the warrantless use of GPS, by law enforcement to track a vehicle.

State Police investigators placed a GPS device under the bumper of Scott Weaver’s van and left it there for 65 days, creeping under the van once to change the battery. Evidence taken from the GPS device was used to convict Weaver of the burglary of a K-Mart.

The New York Court of Appeals found that having a GPS device secretly placed under your vehicle for 65 days was so invasive as to violate the state constitution’s requirement that a search warrant is necessary for the search of the vehicle’s route. The court recognized that while the United States Supreme Court has never considered the validity of a GPS search it had found legal the use of a beeper in United States v. Knotts placed in a barrel of chloroform on the back of a truck as a means to aid agents keep track of the vehicle.

But the court found that the beeper in Knotts was a lot less sophisticated than GPS. The Supreme Court in Knotts found that the beeper was permissible since it was only an aid to human vision. Current devices are a lot more accurate than the beeper and human participation in tracking vehicles is no longer needed. The invasiveness of current devices is way beyond what the Supreme Court could have dreamed of twenty-six years ago in Knotts. As the court stated:

Disclosed in the data retrieved from the
transmitting unit, nearly instantaneously with the press of a
button on the highly portable receiving unit, will be trips the
indisputably private nature of which takes little imagination to
conjure: trips to the psychiatrist, the plastic surgeon, the
abortion clinic, the AIDS treatment center, the strip club, the
criminal defense attorney, the by-the-hour motel, the union
meeting, the mosque, synagogue or church, the gay bar and on and
on.

The court noted that there may be cases where exigent circumstances do not permit the luxury of getting a search warrant but in this case where the GPS device was on the vehicle for 65 days that is hardly the case.

The court also recognized that the expectation of privacy in a vehicle which is open to the public is a lot less than in a residence but it pointed out many circumstances, most recently in Gant, where the Supreme Court found an expectation of privacy in a vehicle.

Unlike the Oregon and Washington constitutions the New York search and seizure clause tracks the Fourth Amendment. Therefore there is some hope that someday when the United States Supreme Court decides a GPS case that it will follow the New York example.

The California Fifth Circuit Court of Appeal in, In re McGraw ordered a new parole hearing for David H. McGraw who is serving a seventeen year to life sentence for the 1980 murder of his twenty-two year old stepson after they both were drinking at a bar.

Last year in In re Lawrence and In re Shaputis the California Supreme Court held the primary factor that the Parole Board and the governor must consider is the “continuing risk to public safety”

In California, in a case where a defendant is sentenced to an indeterminate sentence, the Board of Parole Hearings holds a hearing and if it decides that the inmate in ready for parole it recommends his/her release. The governor then reviews the decision and make a determination whether or not the inmate will be released.

However, very few individuals get released. Former Governor Gray Davis ordered the release of only three individuals. Governor Schwarzenegger has released approximately 200 people. But this is still a very small percentage of those eligible . Of the thousands of hearings held each year, the Parole Board generally recommends the release in three to seven percent of the cases and the governor only orders the release of about one per cent of the individuals that the Parole Board recommends for release

All too often, the Parole Board or the Governor simply states that the original crime committed by the inmate was heinous and use that as an excuse to deny parole. Of course a murder is heinous but the law calls for parole at some point. Using the claim that a murder was heinous merely requires the vast majority of inmates sentenced to indeterminate sentences to be spend life in prison without parole.

In 2007 David McGraw was found unsuitable for parole by the Board of Prison Hearings. The focus of the Board’s decision was the nature of the crime and not any future claims of danger to the public safety. In McGraw,/em> the Court of Appeal, following up on the Supreme Court decisions, ordered the Board to reconsider the release of McGraw based upon the “core statutory determination” of “whether the inmate poses a current threat to public safety.” The Court held that issues such as the nature of the crime can only be considered in light of its effect on the current danger to public safety if McGraw is released.

It should be noted that the prison psychologist found that McGraw no longer has an alcohol problem and that McGraw’s potential for violence is less than the average citizen in the community.

In the groundbreaking case of Apprendi v. New Jersey>the United States Supreme Court held that the Sixth Amendment required that any fact used to raise a sentence above the statutory maximum must be found to be true by a jury by a beyond a reasonable doubt standard. Four years later in Blakely v. Washington the Supreme Court reaffirmed Apprendi and clarified it by holding that a sentence cannot be in excess of that which could have been imposed based solely on the facts admitted by the defendant or found to be true by the jury.

In 2007 the United States Supreme Court applied Blakely to the California sentencing law. Under the California law for each crime, the court had three alternatives. It could either sentence a defendant to the normal sentence generally called the mid-term or if mitigating or aggravating factors were present the court could sentence the defendant to a lower or higher sentence. The problem the Supreme Court found in Cunningham v. California is that in order to sentence someone to the aggravated term a judge had to find that factors were present beyond those found by the jury. Such a system violated the Sixth Amendment’s right to a jury trial.

The California Supreme Court ruled in In re Gomez that Cunningham is retroactive to Blakely.

The Courts use the Teague test to determine whether a case is retroactive or not. Under the Teague test a decision applying a new rule is applicable to a state case only if the earlier decision was not final at the time the defendant’s conviction became final. Here the State Supreme Court ruled that Cunningham v. California was not a new rule in that it was merely an application of Blakely The State Supreme Court found that it was not a new rule despite the fact that Blakely was susceptible to different interpretations by reasonable jurists in that California court had found the California law valid after the Cunningham decision but before the Blakely decision and the lack of unanimity in the Cunningham decision.

So finally the California Supreme Court appears to be giving up its battle with the United States Supreme Court over the validity of the sentencing law. While the In re Gomez
decision appears to be correct since only the state Supreme Court’s failure to apply Blakely to California law required the United States Supreme Court to issue Cunningham. The Cunningham decision was forced by the California Supreme Court’s decision in People v. Black in which the California Supreme Court refused to apply Blakely to California sentencing law.

But while the California Supreme Court initially refused to accept Blakely the state legislature understood Blakely and Cunningham and replaced the sentencing law. As a result the In re Gomez decision will apply to relatively few people who will be able to file a writ of habeas corpus in an attempt to get their sentences reduced from the aggravated sentence to the mid term. As to Gomez he has already completed his term for rape and he is on parole.