Articles Posted in Constitutional Rights

That’s the question the U.S. Supreme Court was considering when they heard oral arguments in Oregon v. Ice— a case adressing whether under Apprendi v. New Jersey (2000), a sentencing judge violates the Sixth Amendment by imposing consecutive sentences based on a fact not found by the jury or admitted by the defendant. Do I think that the Supreme Court will find that consecutive sentences amount to more severe punishment, so the jury must find the facts necessary to justify them?

For some context, in 2000, the Apprendi decision changed the face of Sixth Amendment implications of criminal sentencing when the U.S. Supreme Court mandated that any facts that lead to a higher sentence–if they go beyond the facts that justified a guilty verdict–cannot be decided by a judge, but must be determined by a jury. Essentially, the Court held that this is a critical aspect of the right to be tried by a jury and since that ruling, the jury’s role in determining punishment have been significantly increased by sentencing schemes and legal precedent from lower courts.

The case before the High Court this term (Oregon v. Ice) involves Thomas Eugene Ice, an Oregon man convicted of two counts of first-degree burglary, and four counts of first-degree sexual abuse. Oregon Prosecutors claimed that, on two separate occasions, he entered the apartment of a family in the complex, went into an 11-year-old girl’s bedroom, and each time touched her breast and vagina.

As a result, Ice faced trial on six separate offenses–the burglary offenses and the molestation counts–and he was convicted on all six. (Under Oregon law, sentences imposed for multiple crimes must be concurrently served, unless the judge finds that the offenses did not occur as part of the same course of conduct). In Ice’s case, the judge found that the convictions for the two burglaries and four sex crimes arose out of separate incidents, and thus ordered consecutive sentences, totaling over 28 years, which was the result of requiring that three of the sentences be served back-to-back.

From what legal analysts are saying and the types of questions the Justices were asking the parties at the oral argument, it appears that the Court will continue to require juries to make the factual determinations to justify a consecutive sentence. It is likely though, that California Judges will maintain that this ruling doesn’t apply to California sentences because of our sentencing structure and the District Courts will be the ultimate enforcers of the U.S. Supreme Court’s ruling.

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There are some interesting Petitions for Certiorari the U.S. Supreme Court is considering this fall. At their September 29th conference, the Justices will determine which petitions involve issues that are compelling enough to move to the briefing stage—commonly referred to as the Court granting “cert.” Each year, the 7,000 petitions are filed with the Court, 100 of which cert is granted.

The following are some cases that have a good chance of being heard by the Court and can have far reaching implications to Irving criminal defendants. Issues raised in petitions that caught my attention include: the validity of the “automatic companion” rule under the Fourth Amendment (Owens v. Kentucky), whether state criminal convictions require jury unanimity (Lee v. Louisiana), and whether probable cause for a warrantless search for drugs exists when police observe two men exchanging money for a small, yet unknown object (Pennsylvania v. Dunlap).

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If I’m arrested in Riverside California, do I have to talk to police? The short answer to that question is no. A police officer can stop you, and ask you questions- but you don’t have to respond. Only a judge can force you to answer any questions.

But this brings up a second issue, when is a person under arrest? Because of the many shows on TV like Law and Order and CSI, many people think that an arrest has to include some formal statement by the police like, “you are under arrest,” or “you have a right to remain silent.” But reality is a little more complicated. An arrest occurs when a person no longer reasonably expects that he is free to leave. If, for example, a person is not allowed to leave the scene for an extended period of time, the person may be considered to be “under arrest,” even though those “magic” words are never uttered. If a person is handcuffed, is locked in the back of a police car, or is otherwise kept from leaving, generally the person will be considered to be under arrest—and thus has constitutional protections afforded to them, such as the right to remain silent, and the right to an attorney.

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