Tag Archives: Supreme Court

The historical origins of the 5th Amendment.

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The historical origins of the 5th Amendment can be traced back to English common law and the struggles for individual rights and liberties. The amendment is part of the United States Bill of Rights, which was added to the Constitution to protect the rights of American citizens.

The 5th Amendment was ratified in 1791 as part of the Bill of Rights, which comprises the first ten amendments to the U.S. Constitution. Its origins can be traced to several key historical events and principles:

  1. English Common Law: The concept of the 5th Amendment has its roots in English common law, where certain rights were recognized as fundamental protections against the arbitrary exercise of government power. These principles were brought to the American colonies by English settlers.
  2. Magna Carta (1215): One of the earliest sources of protection against government abuse can be found in the Magna Carta, a foundational legal document in English history. Issued by King John of England in 1215, the Magna Carta established the principle that no person should be deprived of life, liberty, or property without due process of law.
  3. Colonial Experience: The American colonists experienced various grievances under British rule, including violations of their rights to trial by jury and protection against self-incrimination. These experiences further fueled the desire to enshrine protections in the form of amendments to the newly drafted Constitution.
  4. Influence of State Constitutions: Several state constitutions, adopted prior to the ratification of the U.S. Constitution, already included provisions similar to those found in the 5th Amendment. These state-level protections were influential in shaping the Bill of Rights.
  5. Constitutional Convention: During the Constitutional Convention of 1787, there was a heated debate over the inclusion of a Bill of Rights. Some framers, like James Madison, initially opposed it, arguing that the Constitution itself provided sufficient protection for individual rights. However, others, including anti-Federalists, insisted on the inclusion of explicit protections. The eventual compromise led to the addition of the Bill of Rights, which included the 5th Amendment.

The 5th Amendment guarantees several important rights, including protection against double jeopardy, the right to remain silent and avoid self-incrimination, and the right to due process of law. It plays a vital role in safeguarding individual liberties and ensuring that the government cannot deprive citizens of their life, liberty, or property without following established legal procedures.

Illinois Supreme Court Criminal opinions

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Illinois Supreme Court Criminal opinions in People v. Hernandez, People v. Cotto and People v. Grant.
 
People v. Hernandez (PDF)
 
In People v. Hernandez, 2016 IL 118672, the Illinois Supreme Court built upon its recent decision in People v. Ligon, 2016 118023, and determined that the elements of armed robbery are not identical to the elements of armed violence. Because armed robbery does not have the same elements as the lesser Class 2 offense of armed violence with a Category III weapon, which carried a lesser penalty, the Class X sentence for armed robbery imposed upon Hernandez did not violate the proportionate penalties clause of the Illinois Constitution.
 
Article I, section 11, of the Illinois Constitution provides that “[a]ll penalties shall be determined both according to the seriousness of the offense and with the objective of restoring the offender to useful citizenship.” Ill. Const. 1970, art. I, § 11. Analysis of a proportionate penalties challenge focuses on whether the legislature has set the sentence in accord with the seriousness of the offense. If the exact same elements result in different penalties, then one of those penalties has not been set in accordance with the seriousness of the crime.
 
In Hernandez, the defendant entered the residence of an elderly couple and — using heavy metal shears, or tinsnips, that belonged to the couple to force them to open a safe — took money and jewelry from them. After he was convicted and ultimately sentenced to two 40-year terms , the defendant filed a post-conviction petition. In it, he argued that the elements of armed robbery premised on the use of a “dangerous weapon, a bludgeon” are identical to the elements of armed violence, which requires proof that the defendant committed a qualifying felony while armed with a Category III weapon (which category includes a bludgeon). The circuit court granted the defendant a new sentencing hearing, after stating that the sentencing scheme for armed robbery is facially unconstitutional because it provides disproportionate penalties to armed violence with a Category III weapon.
 
The State appealed directly to the Supreme Court.
 
Writing for a unanimous Supreme Court, Justice Karmeier noted Ligon, which was decided earlier this year, and other cases which have established that the common-law definition of “dangerous weapon” found in the armed robbery statute is broader than the definition of “dangerous weapon” that is found in the armed violence statute. While the tin snips used by Hernandez qualify as a dangerous weapon under common-law because they are a tool that can be used to strike a victim, they do not qualify as a Category III “bludgeon,” as that term is defined in the armed violence statute. As a consequence, there was no violation of the proportionate penalties clause under the identical elements test.
 
Nor was the State judicially estopped from asserting that the armed robbery statute and section 33A-2 of the armed violence statute do not have identical elements. While the State took the factual position at trial that the tin snips were actually used as a dangerous weapon (as opposed to being a dangerous weapon in fact), the State’s argument in opposition to the defendant’s post-conviction petition was a legal argument. Because the equitable doctrine of judicial estoppel pertains to factually inconsistent positions in separate proceedings, the State’s position in the Supreme Court was not estopped by its arguments in the trial court.
 
People v. Cotto
 
By Kerry J. Bryson, Office of the State Appellate Defender
 
In 2008, Jesus Cotto was convicted of armed robbery and, due to his prior convictions, was sentenced as a habitual criminal to life imprisonment.
Trial evidence established that Cotto approached three minors while they were walking home from school, grabbed one of them, and forcefully took jewelry from one of them while displaying a gun. Cotto admitted taking the items but contended he did not have a gun.
 
In his postconviction petition, filed by privately retained counsel in 2011, Cotto alleged ineffective assistance of trial and appellate counsel on various grounds and asserted that he was denied due process when the trial court failed to explain his right to substitution of judge. The petition was advanced to the second stage, and the State filed a motion to dismiss arguing that the petition was untimely and failed to include any allegation that the untimely filing was not due to defendant’s culpable negligence and that defendant’s substantive claims were procedurally barred, unsupported, and failed to make a substantial showing of a constitutional violation. Defense counsel filed a response, explaining the petition’s untimeliness. Ultimately, the court allowed the State’s motion to dismiss without referencing the timeliness issue.
 
On appeal, Cotto argued that post-conviction counsel did not provide him with reasonable assistance because he failed to contest the State’s assertion that the petition was untimely. The appellate court rejected the argument, relying on another appellate court decision finding that the “reasonable assistance” standard does not apply to privately retained post-conviction counsel and stating that, even if it did, post-conviction counsel provided reasonable assistance here.
 
Recognizing a split among the districts on the question of whether privately retained post-conviction counsel is subject to the reasonable assistance standard, the Court resolved the issue in favor of holding all post-conviction counsel – retained and appointed – to the same standard (accepting the State’s concession on this point).
 
The Court went on to conclude that the reasonable assistance standard had been met by retained counsel in this matter, however, and affirmed the dismissal of defendant’s post-conviction petition.
 
People v. Grant
 
Court summary
 
JUSTICE THOMAS delivered the judgment of the court, with opinion.
 
Chief Justice Garman and Justices Freeman, Kilbride, Karmeier, Burke, and Theis concurred in the judgment and opinion.
 
In 2002, respondent James Grant was committed to the Department of Corrections under the Sexually Dangerous Persons Act. In 2012, he filed an application in the circuit court of Johnson County, seeking a determination that he was no longer sexually dangerous. This is known as a recovery proceeding. The trial court directed the Department of Corrections to prepare a socio-psychiatric report in accordance with the Act. That evaluation was prepared by a psychiatrist, a psychologist, and a licensed clinical social worker. The report indicated that the respondent had not made much progress, but also opined that he was at low risk to reoffend. The evaluators did not believe that his continued confinement was necessary, and they recommended his release.
 
The State disagreed with the report’s conclusions, objected to portions of it, and sought the court’s permission to call its own independent expert, who was not hired by the Department of Corrections. The respondent challenged this by arguing that this was not provided for by statute, a proposition with which the appellate and supreme courts would later agree. The trial court allowed the State’s psychiatrist to testify, and she opined that the respondent had not recovered and should not be released. This was a jury proceeding, and the jury agreed with her. The respondent appealed.
 
In the appellate court, respondent Grant was awarded a new trial on the theory that statute does not contemplate the appointment of an independent psychiatric expert for the State in a recovery proceeding. The supreme court agreed, noting that when the legislature wants to grant the State the right to an independent psychiatric evaluation of a respondent, it knows how to do so, and that, if this was in fact the intention of the legislature, it needs to say so clearly.
 
Respondent had raised other issues that the appellate court did not reach in ordering a new trial. The supreme court said that the appellate court should address those remaining issues insofar as they are likely to occur on retrial. The cause was remanded to the appellate court.

Supreme Court Rules Right to Speedy Trial Ends at Guilty Verdict

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The Supreme Court on Thursday unanimously ruled that the Constitution’s guarantee of a speedy trial does not protect people convicted of crimes from lengthy sentencing delays.

The case, Betterman v. Montana, No. 14-1457, concerned Brandon T. Betterman, who pleaded guilty to jumping bail in the spring of 2012. He spent the next 14 months in a Montana jail waiting to hear what his sentence would be.

He complained to the judge, saying the delay had put him on an “emotional roller coaster due to the anxiety and depression caused by the uncertainty.” In the summer of 2013, the judge finally sentenced him to seven years in prison, with four years suspended.

The long delay, Mr. Betterman said, had violated his Sixth Amendment right to a speedy trial.

Justice Ruth Bader Ginsburg, writing for the court, rejected the argument. There is a difference between trials, which adjudicate guilt, and sentencings, which determine punishment, she wrote.

“As a measure protecting the presumptively innocent, the speedy trial right — like other similarly aimed measures — loses force upon conviction,” Justice Ginsburg said.

She added that “the sole remedy for a violation of the speedy trial right” is dismissal of the charges, which “would be an unjustified windfall, in most cases, to remedy sentencing delay by vacating validly obtained convictions.” The empty seat left by Justice Antonin Scalia’s death leaves the court with two basic options for cases left on the docket this term if the justices are deadlocked at 4 to 4.

Mr. Betterman had not sought outright dismissal of the case against him, suggesting instead that an appropriate remedy for the 14-month delay in his sentencing would be an equivalent reduction in his prison term. Justice Ginsburg rejected the possibility of “a flexible or tailored remedy.” A violation of the right to a speedy trial, she said, “demands termination of the prosecution.”

Nor did it matter, she wrote, that a vast majority of criminal prosecutions these days end with guilty pleas rather than trials, making sentencing proceedings more important. That “modern reality,” she wrote, “does not bear on the presumption-of-innocence protection at the heart of the Speedy Trial Clause.”

Justice Ginsburg did say that capital cases, in which the sentencing phase is often elaborate and crucial, may require a different speedy-trial analysis.

The court left open a different avenue to attack long sentencing delays.

Mr. Betterman, Justice Ginsburg wrote, “retains an interest in a sentencing proceeding that is fundamentally fair.” It was possible, she said, that he could have attacked the delay in his case as a violation of a different constitutional right, that of due process.

“But because Betterman advanced no due process claim here,” Justice Ginsburg wrote, “we express no opinion on how he might fare under that more pliable standard.”

In a concurrence, Justice Sonia Sotomayor sketched out a possible framework for deciding whether sentencing delays violate due process. In a second concurrence, Justice Clarence Thomas, joined by Justice Samuel A. Alito Jr., said that was premature.

“We have never decided whether the Due Process Clause creates an entitlement to a reasonably prompt sentencing hearing,” Justice Thomas wrote. “Today’s opinion leaves us free to decide the proper analytical framework to analyze such claims if and when the issue is properly before us.”

The Supreme Court Affirms Your Right to Hire a Lawyer of Your Choosing

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Sila Luis says she didn’t do anything wrong. The United States government says she defrauded Medicare for millions of dollars through kickbacks and overbilling. Now the government is putting her on trial to answer for these serious criminal charges, and Luis wants to hire the best lawyer she can afford. One problem: The government has frozen all her assets, including those completely untainted by the alleged fraud.Luis says the asset freeze violates her Sixth Amendment right “to have the assistance of counsel for [her] defense.” The government said it doesn’t: She can still hire counsel; she just has to find one who’ll represent her for free.

On Wednesday, the Supreme Courtsided with Luis in an important victory for the Sixth Amendment—which could use a friend these days. In his plurality opinion, Justice Stephen Breyer reminded the government that the Assistance of Counsel Clause grants a defendant “a fair opportunity to secure counsel of his own choice.” (Emphasis mine.) Put differently, the Sixth Amendment shields a defendant’s “right to be represented by an otherwise qualified attorney whom that defendant can afford to hire.” The government “would undermine the value of that right by taking from Luis the ability to use the funds she needs to pay for her chosen attorney.” So Luis must be permitted to pay her preferred lawyer with untainted funds.

Breyer acknowledges that the government has a “contingent interest in securing its punishment of choice (namely, criminal forfeiture),” and that victims have an “interest in securing restitution.” But these interests do not “enjoy constitutional protection,” and, “compared to the right to counsel of choice, these interests would seem to lie somewhat further from the heart of a fair, effective criminal justice system.” Breyer’s opinion was joined by Chief Justice John Roberts, Justice Ruth Bader Ginsburg, and Justice Sonia Sotomayor. Justice Clarence Thomas concurred with Breyer, but only in the judgment. Breyer, Roberts, and Sotomayor are surely pleased by Luis’ outcome: They dissented from a recent opinion which held that a criminal defendant indicted by a grand jury has virtually no right to challenge the forfeiture of her assets. Luisdoesn’t necessarily cut back on that decision, but it does send a clear message that the Sixth Amendment’s Assistance of Counsel provision remains robust.

In a separate opinion, Thomas criticized Breyer for implying that courts may sometimes balance a defendant’s interest in hiring counsel against the government’s interest in freezing assets. “The Sixth Amendment guarantees the right to counsel of choice,” Thomas explains. “As discussed, a pretrial freeze of untainted assets infringes that right. This conclusion leaves no room for balancing.”

The Sixth Amendment denies the Government unchecked power to freeze a defendant’s assets before trial simply to secure potential forfeiture upon conviction. If that bare expectancy of criminal punishment gave the Government such power, then a defendant’s right to counsel of choice would be meaningless, because retaining an attorney requires resources. … An unlimited power to freeze a defendant’s potentially forfeitable assets in advance of trial would eviscerate the Sixth Amendment’s original meaning and purpose.

For what it’s worth, I think Thomas is absolutely correct, although his separate concurrence drew no other justices. (Might Justice Antonin Scalia have joined it were he still alive?) Still, Sixth Amendment supporters should be pleased with the final outcome of the case. A government that can prevent a legally innocent person from hiring her preferred lawyer is a government unrestrained by the Sixth Amendment’s strictures. Make no mistake: Luis is a triumph for the right to counsel, at a time whenit is in desperate need of a win.

KENTUCKY SENATE PASSES GOP BILL ALLOWING DISCRIMINATION AGAINST INTERRACIAL COUPLES

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KENTUCKY SENATE PASSES GOP BILL ALLOWING DISCRIMINATION AGAINST INTERRACIAL COUPLES

Despite being legal in the United States since 1967, Kentucky Republicans are trying to turn back the clock on interracial marriage by allowing discrimination against interracial couples.

A bill moving forward in the Kentucky Senate would give private businesses and public institutions the right to discriminate against basically anyone they want to as long as they hide behind their Bibles when they do it.

In other words, interracial couples, Muslims, atheists, and gay people can be denied services by businesses and the government for religious reasons even though federal law explicitly forbids discrimination. While the bill does not expressly mention these groups, it is so broad that it might as well.

According to SB180:

‘Protected activities’ means actions by people commissioned, employed, hired, retained, or otherwise used by the public or the government to provide customized, artistic, expressive, creative, ministerial, or spiritual goods or services, or judgments, attestations, or other commissions that involve protected rights;
‘Protected activity provider’ means a person who provides protected activities; and
‘Protected rights’ means the rights of persons to be free from governmental actions that impair, impede, infringe upon, or otherwise restrict the exercise of any right guaranteed by the United States Constitution or the Constitution of Kentucky, including but not limited to a person’s right of conscience, freedom of religion, freedom of speech, freedom of the press, and right to peaceable assembly.

The bill even denies those who are discriminated against the ability to sue in court, which makes it even more clear that Republicans want to turn Kentucky into a theocracy where civil justice and civil rights only belong to conservative “Christians.”

It hasn’t passed yet, but considering the Senate and the House are controlled by Republicans, and Tea Party nitwit Matt Bevin is the Governor, it’s only a matter of time before this bill becomes law and drags Kentucky back to the 1950s.

U.S. Supreme Court Unanimously Reverses Alabama’s Refusal to Recognize a Same-Sex Parent Adoption from Georgia

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U.S. Supreme Court Unanimously Reverses Alabama’s Refusal to Recognize a Same-Sex Parent Adoption from Georgia

(Washington, DC, March 7, 2016)—Today, the United States Supreme Court unanimously reversed an Alabama Supreme Court decision refusing to recognize a lesbian mother’s prior adoption of her three children in Georgia. Today’s summary reversal restores V.L. full rights as an adoptive parent.

“I am overjoyed that the U.S. Supreme Court reversed the Alabama court decision,” said the adoptive mother, V.L. “I have been my children’s mother in every way for their whole lives. I thought that adopting them meant that we would be able to be together always. When the Alabama court said my adoption was invalid and I wasn’t their mother, I didn’t think I could go on. The Supreme Court has done what’s right for my family.”

“The Supreme Court’s reversal of Alabama’s unprecedented decision to void an adoption from another state is a victory not only for our client but for thousands of adopted families,” said National Center for Lesbian Rights Family Law Director Cathy Sakimura, who is representing V.L. “No adoptive parent or child should have to face the uncertainty and loss of being separated years after their adoption just because another state’s court disagrees with the law that was applied in their adoption.”

V.L and E.L. were in a long-term same-sex relationship in which they planned for and raised three children together, using donor insemination. To ensure that both had secure parental rights, V.L., the non-biological mother, adopted the couples’ three children in Georgia in 2007, with E.L.’s support and written consent. When the two later broke up, E.L. kept V.L. from seeing the children, fighting her request for visitation, and arguing that the Georgia adoption was invalid in Alabama, where they live.

In September 2015, the Alabama Supreme Court issued an order refusing to recognize V.L.’s Georgia adoption and declaring that it is “void.” Even though V.L. raised the children from birth and both women participated in the adoption hearing and consented to the adoption, the Court broke with more than a century of precedent requiring states to honor court judgments from other states. Disregarding this clear precedent, the Alabama Supreme Court ruled that Alabama can treat the adoption as void based on the Alabama Supreme Court’s view that the Georgia court should not have granted the adoption in 2007.

In November 2015, V.L. asked the U.S. Supreme Court to Review her case, noting that the Alabama Supreme Court’s decision is unprecedented. Before this ruling, no state supreme court had refused to recognize a same-sex parent’s adoption from another state—or any out-of-state adoption—based on a disagreement with how the court issuing the adoption interpreted its own adoption laws. Under the United States Constitution’s Full Faith and Credit Clause, states are required to respect court judgments, including adoption orders, issued by courts in other states. V.L.’s request said “this Court’s review of the Alabama Supreme Court’s decision is urgently needed” because “the Alabama Supreme Court’s decision flouts a century of precedent on the Full Faith and Credit Clause and will have a devastating impact on Alabama adoptive families.”

In December 2015, the U.S. Supreme Court stayed the Alabama court’s decision, allowing V.L. to have visitation with her children while the Court considered her case.

Antioch Township woman was sentenced to 12 years in prison for setting her then-boyfriend on fire

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An Antioch Township woman was sentenced to 12 years in prison for setting her then-boyfriend on fire in May 2015.

Deborah Roberts, 34, pleaded guilty to one count of aggravated battery in front of Judge George Strickland, Assistant State’s Attorney Danielle Pascucci said Tuesday.

Roberts will have to serve 85 percent of the sentence before being eligible for parole, Strickland said. She received 275 days credit for time she served in Lake County jail.

Had Roberts been found guilty at trial, she could have been sentenced to up to 45 years in prison on that charge, Strickland said.

Prosecutors dropped charges of attempted murder, a second count of aggravated battery, and three counts of aggravated domestic battery in exchange for the negotiated plea agreement, Strickland said.

Roberts and boyfriend Chad Malinowski, 43, were in an argument on the front porch of the house they shared on the 25000 block of Golfview Avenue at 7:27 p.m. on May 17, when she kicked him in the right hip, authorities said.

The kick sent Malinowski tumbling down a five-foot flight of stairs in a fall that shattered his heel, authorities said.

Roberts told police she kicked Malinowski after he spit on her, authorities said. Both had been drinking before the fight began, authorities said.

At the bottom of the stairs, Roberts grabbed a red plastic gasoline can and repeatedly bludgeoned Malinowski with it, authorities said.

Roberts told police she pulled out a lighter and flicked the top of it a threatening manner, authorities said. However, gasoline that had spilled on Malinowski during the attack ignited.

Authorities said a witness heard Roberts say, “I hope you burn,” as she flicked the lighter.

Roberts told police that after the fire started, she grabbed a hose and tried to put out the flames while Malinowski stumbled to the middle of the yard. However, authorities said Roberts poured more gasoline on Malinowski when he tried to put out the flames.

Malinowski was taken to Advocate Condell Medical Center in Libertyville, then to a burn unit at Columbia St. Mary’s Hospital in Milwaukee. He survived the attack.

If Republicans block Obama’s Supreme Court nomination, he wins anyway

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After Justice Antonin Scalia’s death Saturday at 79, the Supreme Court is now evenly divided between four liberal justices and four conservatives, even with Anthony Kennedy’s occasional swings. What a moment for Scalia to depart: The court faces a wild array of closely divided decisions. It is an election year. And President Obama has stacked the lower circuit courts with Democrats. Obama has been chewing on his legacy for months. Fate has handed him the opportunity of any presidency — to swing the balance of the Supreme Court from conservative to liberal. Scalia weighed heavily on the conservative tilt of the current court, registering as more conservative even than other Republican justices in every field except on international and defense issues. There is no other justice whose replacement would more profoundly affect the court’s orientation. The court’s docket this term shows a clear intent to rule on some of the most contentious issues in the society: abortion, unionization, presidential power, affirmative action, political representation. Nothing in the presidential election in the fall matters more than the ability to shape the court. Now everyone should know that, including an incumbent who once taught constitutional law. Any nominee, of course, would have to be confirmed by the Republican­controlled Senate. Leaders there, and also most GOP presidential candidates, are already making clear that they intend to block Obama. But they may not realize that leaving Scalia’s seat vacant plays right into his hands. The court is not yet halfway through the 80 or 90 cases it deals with each term, but many of the most contentious have already been heard. Normally, justices meet the week a case is argued, and vote on the outcome. So they have most likely already voted on pending cases on apportionment and affirmative action, for example. But weeks or months can go by while the justice assigned the opinion circulates drafts. Any justice can change his or her vote at any point during that process, and often does. It’s all very hush­hush, so there is no way to tell how far along the cases Scalia heard are in the pipeline. There is no constitutional provision, no case law and no official policy about what the court should do with cases that have been argued and voted on when a justice dies. If the vote in a case that hasn’t yet been handed down was 5 to 4, as one might expect with these controversial rulings, can Scalia cast the deciding vote from beyond the grave to change the way America chooses every legislature in the land or integrates its public universities? A court that cares about its image and constitutional role will not rule in the name of a majority that counts on a dead justice, especially on the core issues of American social life. Such posthumous decisions are so unprecedented they would make Bush v. Gore look like responsible judicial behavior. Chief Justice John Roberts, who in matters entirely internal to the court like this wields some extra power, is known for his concern for institutional prestige, and he would be right to weigh in against issuing opinions based on what Scalia did in past conferences. So in the cases that Scalia was already a part of, what’s most likely is that the court will do what it has done in the rare, similar circumstances in the past, when important cases like abortion were argued and the personnel on the court changed or where a predictable swing justice was out sick: They will order the cases argued again and voted on again. Of course, the justices will also continue to hear future arguments, but upcoming closely decided cases — such as the abortion case out of Texas also widely predicted to lead to a 5 to 4 vote — will now be tied, 4 to 4. In this term’s contentious, controversial docket, split decisions are inevitable. The court can reargue the pending cases and hear the upcoming ones, but they will be too divided to decide anything truly sweeping. Unresolved cases will stack up. That means only Congress and the White House can resolve the deadlock. And Obama has the power there, even though Republicans control the Senate. By Saturday evening, Senate Majority Leader Mitch McConnell (R­Ky.) had already said the vacancy shouldn’t be filled until the next president is in office, 11 months from now. “The American people should have a voice in the selection of their next Supreme Court justice,” he said. “Therefore, this vacancy should not be filled until we have a new president.” But the GOP might soon reconsider if they see the implications of refusing to allow Obama to replace Scalia: A divided court leaves lower court rulings in place. And the lower courts are blue. Nine of the 13 U.S. Courts of Appeals have a majority of Democratic appointees. That means liberal rulings conservatives were hoping the Supreme Court would overturn remain law. So if Scalia had cast the deciding vote on a case before he died, but the court rehears it and divides 4 to 4, that would leave the lower court decision in place. That’s what would happen with a proposal to apportion Congress in an entirely new way that would heavily favor Republican districts, which was argued recently. The lower court (in this case a district court which went directly to the Supreme Court for technical reasons) tossed the plan out; conservatives had been hoping the justices would restore it. The situation is not always good for liberals. Abortion, in a case that has not yet been argued, was subjected to the most onerous restrictions by the normally conservative Fifth Circuit. If the court deadlocks, most of the abortion clinics in Texas would close. On immigration, the court had announced it would take up another case from the conservative Fifth Circuit over whether Obama has the power to stop breaking up families by ordering the government not to deport millions of undocumented immigrants; the lower court ruling blocked Obama’s executive order, so a tie wouldn’t change that. Most of the country, though, is governed by appeals courts dominated by Democrats. The suit against Obama’s environmental initiative, which the Supreme Court just stayed, came from the liberal D.C. Circuit, which had unanimously refused to grant the stay. Now the Obama administration can simply have the Environmental Protection Agency come up with a slightly different new plan and run to the liberal D.C. courts to bless it and refuse to stay it. It’s unlikely the now­divided Supreme Court would come up with a majority to stay the new rules: The vote to stay the old ones was (naturally) 5 to 4. That’s why the effect of an equally divided court has enormous potential to strengthen Obama’s hand in dealing with the Republican Senate in picking a replacement: Even if the GOP blocks his nominee, the policy outcomes would be very similar to what they’d be if the court had a liberal majority. The institutional cues for Obama are completely different than for the court. The Constitution clearly assigns the task of nominating judges to the president — with the Senate’s advice and consent, to be sure, but for most of American history, presidents got a fair amount of deference. Acting politically is consistent with occupying elected office, so that’s what Obama should do. Political considerations, after all, are what motivate Republicans to pledge to block nominees before any have been announced. This is the moment for Obama to assert his political prerogatives as firmly as his opponents always seem to do. Right now, McConnell sounds like he doesn’t recognize the peril his party is in. If Obama signals that he’s willing to take advantage of the situation by taking actions like passing new environmental rules or moving for rehearing in the pending cases, he’ll put pressure on the Senate by getting what he wants without his court pick. Two­thirds of the people in the country live in blue­court America. So maybe someone like D.C. Circuit Judge Sri Srinivasan —confirmed 97 to 0 just three years ago — will look better to the Senate than nearly a year of living with the appellate courts going wild while the cat’s away. Imagine the glee in the most­reversed circuit court in the nation, the liberal Ninth, which will now be able to tell Arizona and Alaska what to do without fear of contradiction. If Obama really cares about that legacy, nothing would establish it more firmly than using his unexpected advantage to appoint someone who will one day be as much of a hero to liberals as Scalia was to conservatives.

’Reasonable Suspicion’ enough for traffic stop

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Supreme court: ’reasonable suspicion’ enough for traffic stop

“Reasonable suspicion,” not the more exacting “probable cause,” is threshold requirement for an investigatory traffic stop, the Illinois Supreme Court held in a recent DUI ruling.

In overturning a trial court’s order to suppress evidence in a Will County DUI case, the Illinois Supreme Court determined that a traffic stop was proper when the arresting officer witnessed the driver making slight deviations from his lane of traffic.

The trial court had granted the defendant’s motion to suppress based on arguments that the evidence of his insobriety and suspended license was the “fruit of an unlawful search,” and a divided appellate court affirmed that ruling. According to the high court’s opinion, the defendant argued that the officer lacked “probable cause” and therefore had no proper grounds to make the traffic stop.

In People v. Hackett, 2012 IL 111781, a unanimous supreme court overturned the appellate and trial court decisions and remanded the case for a trial based on evidence stemming from what the court held to be a justified “investigatory stop” of defendant’s vehicle. Reasonable suspicion, not probable cause, is the proper standard for an investigatory traffic stop, the high court held.

Assistant Appellate Defender Kerry Bryson said there was obviously some doubt in the minds of the trial judge and appellate panel about what justified pulling over a driver and investigating him and his vehicle.

“To the extent there might have been any question about that, the [supreme] court has made it clear that there shouldn’t be,” said Bryson, who did not handle this case. “To the extent that this is a concern, what clients ought to know moving forward is if they’re going to challenge the stop, the proper standard is…was there reasonable suspicion.”

‘[M]omentary crossings’ can justify stop

In affirming the motion to suppress, the appellate court relied on People v. Smith, 172 Ill.2d 289 (1986), in which a driver was convicted after driving in and out of multiple lanes of traffic for a “reasonably appreciable distance.” The appellate court distinguished Smith from the case at hand, stating that Hackett made only “momentary crossings” of a highway lane line and therefore the officer lacked reasonable grounds to make a stop.

The supreme court rejected the notion that the distance or length of time of the lane deviations made any difference in the enforcement of a statute that prohibits any improper lane usage.

“Although this court in Smith…mentioned the measure of defendant’s deviation into an adjacent lane and the distance he travelled therein, nothing in this court’s analysis indicated either was significant to the outcome,” Justice Karmeier wrote for the court in Hackett.

In this opinion, the supreme court’s analysis focused on “the loose terminology the parties and lower courts in this case have used with reference to the standards applicable to the fourth amendment issue presented for our consideration. The question we agreed to address…is ‘whether the appellate court erroneously found there was no reasonable suspicion for a traffic stop where the uncontested testimony showed defendant swerved twice across a lane divider of traffic.'”

The court explained that vehicle stops are subject to the Fourth Amendment’s “reasonableness requirement,” and the decision to stop a vehicle usually requires probable cause for an officer to believe that a traffic violation has occurred.

“However, as this court has observed, though traffic stops are frequently supported by ‘probable cause’…as differentiated from the ‘less exacting’ standard of ‘reasonable, articulable suspicion’ that justifies an ‘investigative stop,’ the latter will suffice for purposes of the fourth amendment irrespective of whether the stop is supported by probable cause,” the court wrote.

An opening for the defense?

Bryson said the Hackett case got interesting after the third district appellate court affirmed the motion to suppress “because it gave some support to challenging a traffic stop when there was just momentary drifting over the line.” But now it is clear that multiple deviations from a lane of traffic, even if slight in distance and time, are sufficient grounds for an investigative stop, she said.

“I think there’s a little more to it if you read [the Hackett decision] in depth,” Bryson added. “There has to be no reasonable explanation for the deviations” in order for an investigatory stop to be justified.

“If there is a reason for the deviation from the lane, then there might not have been reasonable, articulable suspicion to justify the stop,” Bryson said. “In some cases, there’s been no exploration of that aspect of the basis for the stop. I think that leaves this open as for what a defense attorney can be looking for as a way to challenge the stop.”

The supreme court bolstered its decision by pointing out that a police officer “can effect a lawful Terry stop without first ‘considering whether the circumstances he or she observed would satisfy each element of a particular offense.'”

Where, as in Hackett, a police officer observes multiple lane deviations for no apparent reason, an investigatory stop is proper, the court reasoned.

“For probable cause and conviction, there must be something more: affirmative testimony that defendant deviated from his proper lane of travel and that no road conditions necessitated the movement,” said the court. “An investigatory stop in this situation allows the officer to inquire further into the reason for the lane deviation, either by inquiry of the driver or verification of the condition of the roadway where the deviation occurred.”