SCOTUS hears Indiana case

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Indiana Lawyer Rehearing

Indiana Federal Community Defender Bill Marsh made his debut appearance before the nation’s highest court on Jan. 12, arguing an Indiana case that questions whether vehicular flight from police is considered “violent” and warrants a higher sentence under the Armed Career Criminal Act.

The case is Marcus Sykes v. U.S.A., No. 09-11311, and it comes from the Southern District of Indiana with the potential to impact many other pending cases inside and outside the state.

U.S. Judge Larry McKinney rejected Sykes’ argument that fleeing police in a vehicle wasn’t “violent,” and the judge applied an enhancement to reach a 188-month prison sentence. The 7th Circuit Court of Appeals ruling affirmed the enhancement decision in March 2010, finding that it is considered a “violent felony” as it had previously decided on other cases and was dictated by SCOTUS precedent.

Representing Sykes, Marsh is arguing that the ACCA-applied conviction for vehicular flight was inconsistent with the SCOTUS ruling in U.S. v. Chambers, 555 U.S. 129 S. Ct. 687 (2009), which held that failing to report for parole was separate and distinct from escaping from a penal institution, and therefore falls outside of the category of violent felonies listed in the ACCA. Marsh is relying on a distinction the court made in Chambers, that fleeing from police is a distinct category of flight under Indiana Code § 35-44-3.

Transcripts of the arguments show the justices expressed some hesitation in finding this offense falls under the ACCA use of “violent” felony. Justices questioned both sides about various types of police chases and whether the degree of a chase dictates whether it’s considered “violent,” and several of the jurists pointed to examples from Indiana cases and hypothetical scenarios.

Justice Antonin Scalia noted that he doesn’t think fast fleeing is such a violent activity, saying at one point to U.S. Assistant Solicitor General Jeffrey Wall: “Do words mean nothing? I mean, we’re talking about a violent felony. That’s what the federal law requires. And you want us to hold that failing to stop when a police officer tells you to stop is a violent felony. That seems to me a big leap.”

He wondered whether speeding might be considered a “violent felony” under this statute, and Justice Elena Kagan asked whether drag racing or running away on foot might meet that definition.

Chief Justice John Roberts also noted that a person’s simple “running away” isn’t aggressive, though it may be considered “purposeful” and could even be considered “violent” if it causes injury or death that isn’t intended.

“Certainly the other option is to turn and confront, and he doesn’t want to,” the chief justice said. “There’s nothing aggressive about running away. Those are the three words, ‘purposeful, violent, and aggressive.’ I’ll give you purposeful, I’ll give you violent, but aggressive?”

The SCOTUS is likely to rule on this case by the time its term ends this summer, but it could also delay a decision until after it hears McNeill v. U.S.A., No. 10-5258, a case that also involves ACCA.

Rehearing "Crime of violence?" IL Dec. 8-21, 2010


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  1. I think the cops are doing a great job locking up criminals. The Murder rates in the inner cities are skyrocketing and you think that too any people are being incarcerated. Maybe we need to lock up more of them. We have the ACLU, BLM, NAACP, Civil right Division of the DOJ, the innocent Project etc. We have court system with an appeal process that can go on for years, with attorneys supplied by the government. I'm confused as to how that translates into the idea that the defendants are not being represented properly. Maybe the attorneys need to do more Pro-Bono work

  2. We do not have 10% of our population (which would mean about 32 million) incarcerated. It's closer to 2%.

  3. If a class action suit or other manner of retribution is possible, count me in. I have email and voicemail from the man. He colluded with opposing counsel, I am certain. My case was damaged so severely it nearly lost me everything and I am still paying dearly.

  4. There's probably a lot of blame that can be cast around for Indiana Tech's abysmal bar passage rate this last February. The folks who decided that Indiana, a state with roughly 16,000 to 18,000 attorneys, needs a fifth law school need to question the motives that drove their support of this project. Others, who have been "strong supporters" of the law school, should likewise ask themselves why they believe this institution should be supported. Is it because it fills some real need in the state? Or is it, instead, nothing more than a resume builder for those who teach there part-time? And others who make excuses for the students' poor performance, especially those who offer nothing more than conspiracy theories to back up their claims--who are they helping? What evidence do they have to support their posturing? Ultimately, though, like most everything in life, whether one succeeds or fails is entirely within one's own hands. At least one student from Indiana Tech proved this when he/she took and passed the February bar. A second Indiana Tech student proved this when they took the bar in another state and passed. As for the remaining 9 who took the bar and didn't pass (apparently, one of the students successfully appealed his/her original score), it's now up to them (and nobody else) to ensure that they pass on their second attempt. These folks should feel no shame; many currently successful practicing attorneys failed the bar exam on their first try. These same attorneys picked themselves up, dusted themselves off, and got back to the rigorous study needed to ensure they would pass on their second go 'round. This is what the Indiana Tech students who didn't pass the first time need to do. Of course, none of this answers such questions as whether Indiana Tech should be accredited by the ABA, whether the school should keep its doors open, or, most importantly, whether it should have even opened its doors in the first place. Those who promoted the idea of a fifth law school in Indiana need to do a lot of soul-searching regarding their decisions. These same people should never be allowed, again, to have a say about the future of legal education in this state or anywhere else. Indiana already has four law schools. That's probably one more than it really needs. But it's more than enough.

  5. This man Steve Hubbard goes on any online post or forum he can find and tries to push his company. He said court reporters would be obsolete a few years ago, yet here we are. How does he have time to search out every single post about court reporters and even spy in private court reporting forums if his company is so successful???? Dude, get a life. And back to what this post was about, I agree that some national firms cause a huge problem.