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SCOTUS takes case on whether vehicular flight from police is a 'violent felony'

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Fleeing in a vehicle from police is a crime, without a doubt. No one disputes that.

But whether that crime is considered a “violent” one worthy of an enhanced sentence under a long-standing federal career criminal statute is a legal nuance now an issue before the nation’s highest court, and Indiana is playing a key role.

The Supreme Court of the United States will address that question Jan. 12 when it hears arguments in a case out of Indiana, and the result is likely to impact a handful of other cases already pending in the state’s federal courts as well as reshape precedent on how these and other sentencing standards are viewed across the country.

“We have a piecemeal, Scrabble board of caselaw on this topic right now, and it’s a case-by-case, crime-by-crime analysis,” said Indianapolis attorney Brian Paul, who represents one defendant appealing on this issue at the 7th Circuit. “It’s up to each individual judge and, as an attorney, you don’t have any guidance on how this might be determined except that it might fall under some vague catch-all provision in this federal act about what a ‘crime of violence’ is.”

The cases that are unfolding on this issue center on one provision in the Armed Career Criminal Act, first enacted in 1984 but revised periodically through the years. The controversial part of the law is the meaning of “violent felony,” which has an element of the use, attempted use, or threatened use of physical force. Specifically, the act lists burglary, arson, extortion, or the use of explosives as applying, but it also includes anything that “otherwise involves conduct that presents a serious potential risk of physical injury to another.”

That definition has been causing concern for years, and in recent years the SCOTUS has taken up cases to address it as applied to drunk driving, attempted murder, and other specific crimes. But now it’s being tackled in connection with the use of a vehicle to flee from police.

As its new term began about two months ago, the SCOTUS on Sept. 28 granted certiorari in the case of Sykes v. United States, 09-11311, which comes from the Southern District of Indiana.

The defendant, Marcus Sykes, pleaded guilty in 2008 to being a felon in possession of a firearm after he’d been arrested for brandishing a gun while attempting to rob two people sitting in a parked car outside an Indianapolis liquor store. Though Sykes didn’t follow through on his robbery attempt, police saw him toss the gun aside and arrested him. Sykes pleaded guilty and the probation office issued a pre-sentence report concluding that he was subject to a sentencing enhancement under the ACCA because of three previous violent felony convictions - two 1996 convictions for robbery and one in 2003 for resisting law enforcement in a vehicle, which is a Class D felony under state statute. Sykes objected to the sentence enhancement on grounds that his conviction for resisting law enforcement was not considered a violent felony under Indiana Code §35-44-3-3(b)(1)(A).

At the District level, U.S. Judge Larry McKinney rejected Sykes’ argument and applied the enhancement, resulting in a 188-month prison sentence. The 7th Circuit Court of Appeals ruled on the case in March and affirmed the trial judge’s enhancement decision, finding that it is considered a “violent felony” as the court had previously decided on other cases.

The appellate court applied its ruling in United States v. Spells, 537 F.3d 743, 753 (7th Cir.2008), finding that its precedent was “neither unworkable nor unsound” and grounds to reject Sykes’ push that the past holding should be set aside. Though Sykes acknowledged the 7th Circuit’s holding in Spells that vehicular fleeing from police counts as a violent felony under the ACCA’s residual clause, he contended that the appellate court should instead follow what the 11th Circuit has done in United States v. Harrison, 558 F.3d 1280, 1292 (11th Cir.2009). There, the court held that a nearly identical Florida statute that punishes “fleeing law enforcement” is not a violent felony under the ACCA.

With the Circuit split, and a history of accepting other cases focusing on the “catch all” provision in the ACCA, the SCOTUS agreed to hear the issue.

Indianapolis-based public defender Bill Marsh with the Indiana Federal Community Defenders represents Sykes and is making his debut appearance before the high court.

“We have several of these cases from Indiana and Wisconsin and other states that are in the pipeline, all with similar state statutes on fleeing that we’re talking about here,” Marsh said. “This means a lot to those who are being charged and convicted on these grounds, with the penalty having a maximum of 10 years normally but turning into a minimum of 15 years under this. This is an evolving area, but it’s narrow.”

It doesn’t make sense that a crime such as criminal recklessness, which sometimes is determined to be more serious than fleeing from police in a vehicle under state statute, has been determined to not be an ACCA predicate crime, March said. The U.S. Sentencing Guidelines also don’t consider this type of offense to be considered “violent” and subject to longer sentences, he said.

“We just need consistency,” Marsh said.

The U.S. Department of Justice and Solicitor General declined to comment on the Sykes case or the general issue prior to the arguments next month, instead referring to the merit briefs already submitted and whatever else may be on the record once the justices hear arguments.

But the impact of Sykes goes far beyond that particular case and will help determine the fate of other cases and the Hoosier attorneys representing those defendants.

Paul is an Ice Miller lawyer handling one of those cases pro bono before the 7th Circuit. That case is U.S. v. Jadrion Griffin, No. 10-2028, and stems from a ruling by U.S. Judge Richard Young in the Southern District of Indiana’s Evansville division. A federal grand jury indicted Griffin in 2009 for various drug and gun-related offenses dating back to February 2007, and part of his eventual 360-month sentence in April delved into a past conviction of fleeing from police by vehicle.

But now that the SCOTUS has agreed to hear the other Indiana case on this issue, Paul has asked the 7th Circuit to hold off on deciding the Griffin case until the high court issues a decision – likely by the end of June.

“It’s not totally shocking that the Supreme Court took Sykes, but it is somewhat because of how these cases continue going before the court,” he said, referencing the decisions from recent years on “violent crimes.”

In one case, Justice Antonin Scalia dissented and criticized that the court would likely have to decide this issue on each type of crime, rather than issuing some uniform guidance for judges and courts to follow. But what he finds even more troubling is that the government hasn’t produced specific studies or statistics about how vehicular fleeing from police might be considered “violent,” depending on speeds and demographics or other circumstances.

The Fair Sentencing Act is aimed at restoring fairness to federal sentences, and that same standard should apply here as it relates to crimes that under state law and even U.S. Sentencing Guidelines are not considered “similar” as far as “violence.” Judge Richard Posner has described this as “an embarrassment to the law,” Paul noted.

“I’m not a criminal lawyer and handle mostly civil cases, but I see how the confusion and lack of clarity here creates anxiety in the criminal justice community,” he said. “This comes down to accountability. Basically, it’s like prosecutors are saying, ‘trust me, this is a crime of violence because we say so’ and the judges are left to decide this by the seats of their pants, based on what they might consider is violent. We need to do better.”•
 

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  1. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

  2. "Meanwhile small- and mid-size firms are getting squeezed and likely will not survive unless they become a boutique firm." I've been a business attorney in small, and now mid-size firm for over 30 years, and for over 30 years legal consultants have been preaching this exact same mantra of impending doom for small and mid-sized firms -- verbatim. This claim apparently helps them gin up merger opportunities from smaller firms who become convinced that they need to become larger overnight. The claim that large corporations are interested in cost-saving and efficiency has likewise been preached for decades, and is likewise bunk. If large corporations had any real interest in saving money they wouldn't use large law firms whose rates are substantially higher than those of high-quality mid-sized firms.

  3. The family is the foundation of all human government. That is the Grand Design. Modern governments throw off this Design and make bureaucratic war against the family, as does Hollywood and cultural elitists such as third wave feminists. Since WWII we have been on a ship of fools that way, with both the elite and government and their social engineering hacks relentlessly attacking the very foundation of social order. And their success? See it in the streets of Fergusson, on the food stamp doles (mostly broken families)and in the above article. Reject the Grand Design for true social function, enter the Glorious State to manage social dysfunction. Our Brave New World will be a prison camp, and we will welcome it as the only way to manage given the anarchy without it.

  4. When I hear 'Juvenile Lawyer' I think of an attorney helping a high school aged kid through the court system for a poor decision; like smashing mailboxes. Thank you for opening up my eyes to the bigger picture of the need for juvenile attorneys. It made me sad, but also fascinated, when it was explained, in the sixth paragraph, that parents making poor decisions (such as drug abuse) can cause situations where children need legal representation and aid from a lawyer.

  5. Some in the Hoosier legal elite consider this prayer recommended by the AG seditious, not to mention the Saint who pledged loyalty to God over King and went to the axe for so doing: "Thomas More, counselor of law and statesman of integrity, merry martyr and most human of saints: Pray that, for the glory of God and in the pursuit of His justice, I may be trustworthy with confidences, keen in study, accurate in analysis, correct in conclusion, able in argument, loyal to clients, honest with all, courteous to adversaries, ever attentive to conscience. Sit with me at my desk and listen with me to my clients' tales. Read with me in my library and stand always beside me so that today I shall not, to win a point, lose my soul. Pray that my family may find in me what yours found in you: friendship and courage, cheerfulness and charity, diligence in duties, counsel in adversity, patience in pain—their good servant, and God's first. Amen."

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