Volume 52 | University of Richmond Law Review

Rapid DNA Testing and Virginia’s Rape Kit Backlog: A Double-Edged Sword Masquerading as a Miracle, or the Future of Forensic Analysis?

Emma C. Greger*

When authorities in Richland County, South Carolina, arrived on the scene after receiving a report of shots fired on July 29, 2014, they found a wounded man but no suspect. The victim seemed to have been on the receiving end of an armed robbery gone wrong and had been shot during a “physical altercation” with the would be thief. Because of this “physical altercation,” officers from the sheriff’s department were able to recover deoxyribonucleic acid (“DNA”) samples from the victim’s clothing. A short time later, suspect Brandon Berry was taken into custody after being apprehended at a traffic stop; Berry would go on to be convicted of, among other charges, attempted murder and attempted armed robbery.

* J.D. Candidate, 2019, University of Richmond School of Law. B.A., 2014, University of Maryland, Baltimore County. I want to express my gratitude to Professor Mary Kelly Tate, who both inspired me to write on the intersection of human genetics and the law, and offered invaluable feedback throughout the drafting process. A huge thank you to the staff of the University of Richmond Law Review for helping prepare this article for publication. Finally, special thanks to my family and to my best friend, Lilias Gordon, for their support, ideas, and willingness to listen.

Enforcing Statutory Maximums: How Federal Supervised Release Violates the Sixth Amendment Rights Defined in Apprendi v. New Jersey

Danny Zemel*

The Sixth Amendment commands that “[i]n all criminal prose- cutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed.” Trial by a jury of one’s peers is a fundamental American legal right, existing in the earliest colonies before being codified in both Article III of the Constitution and the Sixth Amendment. The jury trial right derives from “the mass of the people,” ensuring that “no man can be condemned of life, or limb, or property, or reputation, without the concurrence of the voice of the people.” In recent decades, the Supreme Court has held the Sixth Amendment commands that the jury find, by proof beyond a reasonable doubt, the facts necessary to raise the minimum or maximum sentences for the criminal conduct the defendant committed. However, the increasing prevalence of supervised release revocations and reimprisonments has created a work-around to this rule, eroding the importance of the jury in the federal criminal system.

* J.D. Candidate, 2019, University of Richmond School of Law. B.A., 2013, University of Pittsburgh. I would like to thank the staff and editors of the University of Richmond Law Review for their assistance. I would also like to thank Professor Paul Crane, Sharon Zemel, Elizabeth Bingler, and Justin Hill for their input and support.

Acknowledgments

The University of Richmond Law Review is proud to present its 2017 Symposium Issue: Defining the Constitution’s President Through Legal and Political Conflict. The Law Review hosts this annual discussion in an effort to assemble the nation’s leading voices to discuss current, critical issues in the law with fellow students and the greater Richmond community. This year’s symposium focused on how the American presidency has been shaped under the Obama and Trump Administrations through clashes with other branches of the federal government, as well as state attorneys general.

“Special Solicitude”: The Growing Power of State Attorneys General

Mark L. Earley *

The most powerful elected position in the United States today, with respect to checking any perceived overreach of presidential or federal power, is not in Congress, the House of Representatives or the Senate, but is among the fifty state attorneys general.

When Attorney General Shapiro of the Commonwealth of Pennsylvania was asked to run for the United States Senate, he declined saying, “I’m going to run for attorney general because that is the most impactful elected position in America today.” I think he is right.

* Attorney General of Virginia, 1998–2001; Virginia State Senator, 1988–1998. J.D., Marshall-Wythe School of Law at the College of William & Mary; B.A., College of William & Mary. This speech was delivered at the 2017 University of Richmond Law Review Symposium: Defining the Constitution’s President Through Legal and Political Conflict on October 27, 2017, at the University of Richmond School of Law.

Characterizing Power for Separation-of-Powers Purposes

Tuan N. Samahon *

Every separation-of-powers case quickly encounters a fundamental threshold inquiry that remains surprisingly difficult, even after almost 230 years of practice under the United States Constitution: what is the nature—legislative, executive, or judicial—of the contested power exercised? The three cognate vesting clauses in Articles I, II, and III use these undefined terms as if they are intended to have substantive, separate content. This tripartite division, which is inefficient by design, is built into our constitutional system to safeguard individual liberty by assuring that powers to legislate, execute, and adjudicate the laws do not all fall into a single set of (potentially) oppressive hands. In many separation-of-powers cases, whether the challenged institutional arrangement has honored that principle turns on the categorization or characterization of the powers at stake.

* Professor of Law, Villanova University, Charles Widger School of Law. The author presented a version of this article during the University of Richmond Law Review’s Symposium: Defining the Constitution’s President Through Legal & Political Conflict (Oct. 27, 2017). I thank Todd Aagaard for his comments and Stephanie Mersch for her research assistance.

A Non-Originalist Separation of Powers

Eric J. Segall *

Since the end of World War II, some of the United States Supreme Court’s most important constitutional law cases have focused on the appropriate relationships between and among the three branches of the federal government. Although the phrase “separation of powers” is not in the constitutional text, the Supreme Court has played a pivotal role in ensuring that the framers’ desire for a government of checks and balances is fulfilled. In most of these disputes, however, the Constitution’s text and original meaning played, at most, a marginal role in the Court’s decisions. Given the academic focus, some might say obsession, with “originalism,” as well as President Trump’s promise to only appoint originalist judges, the absence of textual and originalist analysis in the Court’s separation-of-powers decisions suggests that originalism, at least in this area of the law, is more illusion than substance.

* Kathy & Lawrence Ashe Professor of Law, Georgia State University College of Law. This article was presented at the University of Richmond Law Review Symposium: Defining the Constitution’s President Through Legal & Political Conflict (Oct. 27, 2017). I would like to thank the Law Review students and the University of Richmond School of Law for hosting such a wonderful program.

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