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Yesterday we filed our brief in opposition to cert. in No. 04-806, Arkansas v. Jolly, the second of four briefs that we did with our students in the Harvard Winter Term class. In its cert. petition, the State of Arkansas asks the Supreme Court to review the Arkansas Supreme Court’s holding that the nearly six-year gap between Jolly’s guilty plea and sentencing violates his Sixth Amendment right to a speedy trial. Here are the details. In 1997, Jolly pleaded guilty to statutory rape – a charge that arose from what the state concedes was a consensual relationship with a twelve-year-old girl. He remained free on bond pending a pre-sentence report and sentencing. And then (in the words of my daughter’s favorite philosopher, Elmo) he waited. And he waited. And he waited . . . until February 2003, when a new prosecuting attorney realized that Jolly had never been sentenced. Jolly responded to the state’s efforts to have him sentenced with a motion to dismiss, contending that the delay in sentencing violated his Sixth Amendment right to a speedy trial. The court denied the motion to dismiss and sentenced him to twenty-four years in prison, with twelve of those years suspended.

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The Supreme Court, since reinstating the death penalty in 1976, has made it clear that defects in a key factor in many death sentencing cases can be cured by corrective decisions in appeals courts. But that rule may no longer be true – or at least, perhaps not true in many cases. Probably without intending explicitly to do so, the Court has sent an implied invitation to defense lawyers to raise the issue anew in future appeals. It did so in a significant footnote in its unsigned ruling on January 24 in the case of Bell v. Cone, a Tennessee capital case (docket 04-394). In many states that retain the death penalty, one of the “aggravating factors” that can lead to capital punishment in a murder case is a finding that the crime was committed in “an especially heinous, atrocious, or cruel” way (or some variation on those specific words). For decades, defense lawyers have been attacking that factor – standing alone -- as unconstitutionally vague, and the Supreme Court has agreed. But beginning with its ruling in Proffitt v. Florida, decided on July 2, 1976 (the same day that the Court reinstated the death penalty nationwide in Gregg v. Georgia), the Court has allowed state and federal appeals courts to interpret such phrases in a narrowing way, to remove the vagueness and thus the threat of an arbitrarily-imposed death sentence. The problem, it now appears, is that such after-the-trial narrowing by a reviewing court may run afoul of the Supreme Court’s firm insistence these days that juries, not judges, make the critical calls on sentence-enhancing factors – the so-called Apprendi line of cases.

The Supreme Court spent little effort on a recent decision allowing police, who have stopped a car for a traffic violation, to walk a drug-detection dog around the vehicle to check for illegal narcotics. It took less than five full pages to decide the case of Illinois v. Caballes on January 24. But that 6-2 ruling raised deeper questions under the Fourth Amendment about using a drug-sniffing canine when the scene switched from a roadside traffic encounter to a similar search of a private home, from the outside. The Court is already showing some interest in that question – presumably because of a conflict in the lower courts. A week after the Caballes decision, the state of Texas was asked to file a response to the petition in Smith v. Texas (04-874). In that case, and another arising out of the same canine search (Stauffer v. Texas, 04-825), the state had waived its right to oppose the petitions. The Court is expected to act on the Smith case sometime in March, after the state’s brief is in.

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