Monthly Archives: January 2012

Legal Fiction: Prelude

The moment when you realize the certainty of your death is a strange one. Chelsea Hale was experiencing just this moment as she fell toward a crowded Manhattan street some 500 feet below her. She wasn’t sure how much the impact would hurt or if she’d even feel it but she was certain this was not the kind of fall you survive.

Was she feeling terrified? Of course. But more than that, the feeling washing over Chelsea in her final moments alive was one of bitterness. It wasn’t fair that she had to die at the age of 28. It wasn’t fair that her parents would outlive her. And it especially wasn’t fair that they would assume she’d taken the coward’s way out by committing suicide.

It wasn’t fair but time was up. The pavement was flying toward her now and she couldn’t bare to look. She closed her eyes. The sounds of the city—the cars, the people, the subway—were getting closer and closer and closer.

And then it was over.

It was the end of Chelsea Hale’s story – but it’s the beginning of this one. This is the story Chelsea would have told you herself if only life were fair. This is the story of her murder.

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The Media Got It Wrong: SCOTUS Didn’t Hold That A Warrant Is Required For Using A GPS On A Suspect’s Car

The title of this post pretty much says it all. I agree with Tom Goldstein’s analysis on SCOTUSblog where he explains why the United States Supreme Court didn’t hold in United States v. Jones that law enforcement must get a warrant before installing and/or using a GPS device to monitor a criminal suspect.

In fact, he does such a good job explaining why here that I won’t waste your time with duplicated effort. Just read his post. I excerpt the most key part below:

So to sum up, here is what I think it is fair to conclude about Jones.  It holds that installing a GPS device is a search that may or may not require a warrant, and it strongly suggests that long-term monitoring of that device will require a warrant.  But the Court does not hold that installing the device requires a warrant, and in fact the tea leaves suggest it would reject that conclusion if the device is only going to be monitored for a day or two.

There you have it. Tom gets it right. The media get it wrong.

-Zachary Cloud

A Refreshing View on Pardons, Imprisonment, and Rehabilitation

When Mississippi’s governor left office, his pardons and grants of clemency caused quite a stir. In this editorial, he justifies his actions. It’s well worth a read.

Seriously, just read it.

-Zachary CLoud

Celebrating 1 Year Without Facebook

Just a quick, celebratory post here. Approximately a year ago, I deleted my facebook account. I was one of the early adopters of facebook – I got my account when it was still limited to Ivy League colleges.* But I grew to dislike it more and more, finally deciding once and for all to break free. A year later, I’m so glad that I did. I don’t miss facebook at all. I thought life without it would be rough and/or that I’d relapse within a few weeks. But I didn’t. I quit cold turkey and stuck with it.

And I’m happy! Here’s to another year of facebook-free bliss.

-Zachary Cloud

*Though I wasn’t in college yet, I had a Harvard email account at the time because of a program I was participating in.

Good Habeas News, SOPA, &c.

1st. The Supreme Court released its opinion in Maples v. Thomas today. The Court held for the petitioner finding that cause had been shown to excuse default because his Sullivan & Cromwell attorneys effectively abandoned him. Only Justices Scalia and Thomas dissented.

2d. Most discussions of SOPA on the web right now are intellectually dissatisfying. Don’t turn to them, turn to this open letter. It’s authored by 110 law professors and details the problems with both SOPA and PROTECT-IP.

3d. Things have gotten very busy as of late but I’ll continue to follow pending habeas cases and other interesting criminal law cases.

4th. Of course, the first chapter of Legal Fiction is coming very soon as well!

-Zachary Cloud

The Mechanics of Rayshawn Johnson’s Case Explained

You’ll probably only care about this if you’re from Cincinnati (or are a fan of seeing habeas in action). On Tuesday, Jan 10, 2012, a Hamilton County Court of Common Pleas judge “re-sentenced” Rayshawn Johnson to death. A lot of Cincinnati seemed to delight in this – proof that most people do view justice as “eye-for-an-eye.” Anyhow, people keep wondering why he was re-sentenced in the first place. I figured someone out there should explain this…and who better to do so than a habeas fan? So, here’s the explanation taken from the Sixth Circuit’s habeas grant:

In May 1998, a jury convicted Johnson on all counts and recommended the death penalty. The trial judge accepted the recommendation and sentenced Johnson to death.

Johnson appealed his conviction to the Ohio Supreme Court, arguing (among other things) that misconduct by the judge and the prosecutor denied him a fair trial and that his counsel conducted a constitutionally ineffective penalty-phase investigation. See State v. Johnson, 88 Ohio St.3d 95, 723 N.E.2d 1054, 1072-73, 1076 (Ohio 2000), cert. denied, 531 U.S. 889, 121 S.Ct. 212, 148 L.Ed.2d 149 (2000). The court rejected each claim and independently determined that Johnson’s death penalty was appropriate. Id. at 1077-78. In state post-conviction proceedings, Johnson raised a claim of judicial bias and renewed his ineffective-assistance claim, submitting additional evidence and affidavits. State v. Johnson, No. C-000090, 2000 WL 1760225, at *3-9, *11 (Ohio Ct.App. Dec.1, 2000). The Ohio Court of Appeals denied each claim, id., and the Ohio Supreme Court denied review, 91 Ohio St.3d 1481, 744 N.E.2d 1194 (Ohio 2001).

Johnson petitioned for a writ of habeas corpus. The district court granted relief on Johnson’s ineffective-assistance claim but denied his other claims. When the warden appealed the district court’s grant of the writ, Johnson (after receiving a certificate of appealability) cross-appealed the denial of his judicial-misconduct, judicial-bias and prosecutorial-misconduct claims as well as the denial of his motion to amend the petition.

The Sixth Circuit upheld that habeas grant and so Rayshawn Johnson got a second shot at sentencing. To review: Johnson exhausted his direct appeals in the state courts then petitioned for habeas in the state courts. Receiving no relief, Johnson brought a § 2254 petition in federal district court.

That’s how habeas works, folks. That’s Rayshawn Johnson’s case explained in a nutshell.

-Zachary Cloud

The Good and the Bad

Yesterday, the Supreme Court issued an opinion in Smith v. Cain. That’s the case where the New Orleans Assistant District Attorney embarrassed herself. For those of us in criminal defense, it’s a good opinion! The defendant’s conviction was overturned due to a Brady violation.

But today there was some bad. The Court issued its opinion in Perry v. New Hampshire holding that the Due Process Clause of the 14th amendment does not require a “preliminary judicial inquiry into the reliability of an eyewitness identification” if the person making the identification was not made “under unnecessarily suggestive circumstances arranged by law enforcement.”

Neither opinion’s outcome is surprising in light of how oral arguments went. So there’s the good and the bad. I may do a write-up on Perry soon but this will suffice for today.

-Zachary Cloud