The New York Yankees' right fielder, Aaron Judge, was the rookie of the year in the American league this past season. I know a lot about him. I know that he absolutely killed the Baltimore Orioles: he hit .426, and clubbed 11 homers in only 61 at-bats against them. That works out to one home run every 5.5 at-bats. Babe Ruth hit a home run every 14.8 at-bats.
But against the Boston Red Sox, Judge was a bum. He managed only 11 hits in 73 at-bats, batting an abysmal .151, with only two home runs.
There's all kinds of data out there about baseball players. And football, basketball, and hockey players, too. Data is not merely useful in sports, it is indispensable. It informs virtually every decision a manager or a coach makes.
Data is very useful in the law, too. Or would be, if we had it.
The 8th District took the week off following New Years' Day: only one opinion, dealing with a defendant's forlorn attempt to reopen an appeal. But they made up for it last week, handing down nearly a dozen criminal decisions, including four dealing with defendants' forlorn attempts to reopen their appeals.
Maybe you woke up this morning wondering when you could appeal a juvenile judge's ruling sending your client off to adult court because he wasn't amenable to rehabilitation in the juvenile system. Or maybe your slumber was interrupted by the nagging question of whether a trial judge could, as a matter of policy, refuse to accept no contest pleas. Or perhaps you spent the night tossing and turning, perplexed, as am I, with the question of how the bulk dose of fentanyl is determined.
Well, Sparky, I've got good news. The Supreme Court provided an answer to those very questions last Friday.
Mark Twain and I have something in common besides the fact that we have mustaches. We've both suffered the ignominy of having our works banned.
Twain's issue has gotten slightly more publicity than mine. Twain's masterpiece, Huckleberry Finn, features as one of its characters Nigger Jim. Although the book was published in 1884, this became A Thing in the 1990's, and with some degree of legitimacy. At any rate, before you could say -- well, Huckleberry Finn -- the books came flying off the shelves of public libraries across the land, lest some racist Beavis and Butthead .duo wind up in the stacks, chortling as they plow through Twain's opus, "Heh-heh, he said 'nigger.'"
But that's got nothing on me. I've been banned by the State of Ohio.
A recent study I made up for this post shows that 77% of Americans rely on their cell phones as their primary mode of communication. Hence, the emergence of the Cell Phone Tower Guy. He's become a fixture in high-profile criminal cases. Called as a witness by the State, he gets up on the stand and draws a nice little diagram showing the towers that the defendant's cell phone hit off of, and when. The finished diagram has a lot of dots right near the crime scene, at the time the crime was committed.
We'll talk about how to fight this, what the law looks like, and what could be a game-changer.
Got an email from an attorney friend of mine a couple weeks ago, informing me that the State had quoted me in their brief in an appeal she was handling. She did not appear too pleased by this, closing her missive by postulating the existence of a sexual relationship between me and my mother.
The case involved a Batson challenge, and the State began its brief on this point discussing the sanctity of peremptory challenges, closing with this:
Even a prominent local criminal defense and appellate attorney acknowledged as much, describing the "hound dog method" of picking a jury: "Every now and then, you'll see two dogs being walked down the street, who take an instant dislike to each other, barking and howling. That works with people, too. If you're getting bad vibes from a prospective juror, kick them off."
That attorney was me, of course, in a blog post I'd done in October. This isn't the first time this has happened, but right now, I'm just basking in the glow of having achieved prominence in the eyes of the prosecutor's office.
So I thought I'd start my first post in six weeks by explaining why it's my first post in six weeks.
Ever run into somebody and ask the obligatory question, "How are you doing?" And they proceed to tell you that their wife's been in an accident, and they're barely getting by what with what they have to spend on college for the kids, and they had to have their gall bladder taken out, and one of their best friends' kids OD'd? And you say, "Whatever happened to 'Fine. You?'"
Well, my answer to the obligatory question, if I was being truthful, would be, "I've got cancer, my wife's got Alzheimer's, and I'm lying awake at night thinking about the work I have to do."
The cancer part's not a big deal. Here's my tip for the day: if you've got a choice of which cancer to get, pick prostate cancer. The chances are very great that you're going to die with it, not of it. Sure, there are the radiation treatments, where they shoot x-rays into your prostate, five days a week for nine weeks, but that's about it. Beats the hell out of chemo.
My treatment was a bit problematic, to be sure. The nurse would interview me each week to see how I was doing. The third week in, she asked me if I had any burning. "Only my desire for you," I replied.
So I was kicked out of there, and wound up with one of the less reputable medical providers, Frank's Oncology Center and Tire Store. The staff could have used a bit more training; kind of unsettling when the nurse escorting you to the X-ray station shouts out "Dead man walking!"
The part about having prostate cancer and the treatments is true; the rest, not so much.
The part about Alzheimer's is true, too. Karen's been in an assisted living facility for the past two years. I cannot begin to tell you how horrible it is to go there every night and feed someone you've been married to for thirty-six years, and who has no idea who you are other than that you're someone who comes to feed her every night. Believe me, it takes a lot out of you.
The work's true, too. I've got a massive appeal in Federal court on a Medicare fraud case due next Monday. No extensions. Two-thousand page transcript, 1100 exhibits, and I've got nothing. I've read the transcript and the exhibits, but I haven't started the brief yet - I'm writing this instead, which gives you an indication of where my priorities are. Still, I'll get it done, because I always do. If only that were the only thing I have on the horizon.
But, on the bright side, it was better this past year than in 2016. That year, I did no fewer than 33 briefs, six in the Supreme Court. That's way, way too much.
So I really haven't had time to do the blog the way I want to, not only because of the stuff above, but because I'll waste time watching TV or playing solitaire on the computer or surfing the Internet as an escape. And in May, I'll have been doing the blog for twelve years. That's a long time.
But then I get emails from people telling me that something they read here really helped them win a case, or like one last week about how they highly recommend the site to other lawyers. Plus, I enjoy writing, and this gives me an outlet. Plus, it keeps me informed about the law.
That's a lot of pluses.
So I'm going to keep plodding on. It'll probably only be three posts a week, at least until I get out from some other stuff. I'll have an 8th District roundup tomorrow, and something else on Friday. See you then.
If the next bar exam has an appellate question, State v. Bhambra could provide it. He's charged with several counts of rape and gross sexual imposition, but in August he works out a deal: he'll plead to one count of GSI, and one count of the indictment will be amended from attempted rape to felonious assault. (Why isn't important.) He's sentenced on October 14. He files a motion to withdraw his plea, which is denied on November 29. He files a notice of appeal on December 21. In his appeal, he argues that the plea was invalid because under Crim.R. 7(D), an indictment count can't be amended if it would change the name or identity of the crime. The appellate court should:
A) Refuse to consider Bhambra's argument because he only appealed from the denial of the motion to withdraw
B) Vacate Bhambra's plea and remand the case
(C) Reject Bhambra's argument on the merits
The correct answer is (A), but the panel doesn't get to that until it finishes (C). That's not a hard job, because the law's clear that a defendant can waive 7(D), and in fact explicitly did so here. Some extra work, but the panel recognizes this as bootstrapping -- appealing one order to argue one you didn't appeal -- and that's that.
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