Justin Noble lucked out. Found guilty of sixteen counts of theft and sundry other offenses, the judge told him at sentencing that he'd "wasted this jury's time" with a trial because he "had no defense whatsoever." "This isn't a case where you had some legitimate defense," the judge said. "You just took a shot and hoped that the jury was dumb enough to buy some of these nonsensical arguments." The 12th District said that was sufficient to create the appearance that the judge was imposing a "trial tax," that is, increasing Noble's sentence because he didn't plead, and remanded the case for a new sentencing.
Noble was lucky because getting punished for going to trial happens All. The. Time. And unless the judge is indiscrete enough to say something about it, it'll get a pass. Last year up here, a defendant was offered a sentence of five years if he pled to a string of burglaries. His co-defendant, the mastermind of the operation, pled and got nine years. The defendant insisted on trial, got convicted, and was sentenced to 48 years. Another defendant was offered a plea with a recommended sentence of between seven and eleven years. The judge told him that he'd consider judicial release after five and half. The defendant went to trial, lost, and the judge shipped him for 35 years.
Last week, the Supreme Court heard arguments on whether Malik Rahab is going to get lucky.
In the new world of alternative facts, I'm left wishing that the 8th would issue some alternative decisions. But we gots what we gots, so let's dig into it.
State v. King wends its way toward a conclusion. As those of you who saw the episode of 48 Hours, let alone the numerous documentaries, covering the case know, King pled guilty to drug possession, which at the time required a mandatory driver's license suspension. A few days later, her attorney filed a motion for limited driving privileges, and the court granted them, not only for work and medical appointments, but for "grocery shopping and paying bills."
The State appealed this extreme example of judicial activism. I wound up with the appeal, and pointed out that the judge had never issued an order suspending the license in the first place. The panel initially reversed, relying on cases which have held that failure to impose the mandatory suspension renders that portion of the sentence void, and remanded the case for resentencing on that point. A few weeks later, it sua sponte vacated that order, but after pondering it further, issued a decision to the same effect last week.
The law's changed since then, though; the suspension is now discretionary. We'll have to wait a while to see how this all plays out: under the new 8th District policy, the court keeps the file until the 45 days time for appeal to the Supreme Court has expired, and only then will return it to the common pleas court.
Punxsatawney Phil last emerged last week, and so did the topic of the Federal judiciary's independence, the latter a result of our Supreme Leader's latest Twitter barrage about the "so-called" judges striking down his executive order on immigration. Even Trump's Supreme Court nominee Neil Gorsuch confessed to several senators that he found the attacks "dispiriting" and "demoralizing," which the Trump palace regulars disputed, only to have the exchange confirmed by White House aides who were present.
Still, while a majority of the public edges closer to the belief that the country should get a Mulligan for last November's election, it's proper to note that many of the same people caterwauling about Trump's tweets had no problem with Obama using his 2010 State of the Union speech to lambaste the Supreme Court over its Citizens United decision, while the justices sat there in silence. Yes, judges should be independent, but it's not like Trump can apprenticize the judges and tell them, "You're fired!"
The only thing happening in SCOTUS this week is Friday's conference, where the justices will decide which certiorari petitions have been naughty and which have been nice; the last conference yielded no grants, so don't get your hopes up. Nothing going on in the Ohio Supreme Court, either, except that we'll have a bevy of oral arguments to discuss later this week. So let's head over to the courts of appeals.
Your client decides he wants to dispense with your services and try the case himself. Not only does he have to sign a waiver of his right to counsel, the judge has to engage in an extended colloquy with him to ensure that his waiver of this key constitutional right is knowing, intelligent, and voluntary: inquiring as to any training or knowledge that he has in the law, informing him of the nature of the charges against him and the potential penalties, and advising him of the perils of self-representation.
Your client decides he wants to dispense with a jury and try the case to the judge. Not only does he have to sign a waiver of his right to a jury trial, the judge has to engage in an extended colloquy to ensure that his waiver of this key constitutional right is knowing, intelligent, and voluntary: inquiring as to his previous experience in criminal cases, and informing him that while a jury verdict must be unanimous, if he waives a jury the judge will be the sole determiner of his guilt or innocence.
The colloquy requires for a waiver of counsel is called a Faretta hearing. The colloquy required for a jury waiver isn't called anything, because it doesn't exist. The "colloquy" necessary for a jury waiver requires the judge to do no more than hold up the waiver and ask, "Is this your signature?"
This week's news on SCOTUS centered on Neil Gorsuch's nomination to take Scalia's seat on the High Court. In keeping with this Blog's policy not to venture into politics, except to make a snarky comment every now and then, we'll not brook any discussion about whether opposition to his nomination has any chance of success. SCOTUSblog has helpfully provided us with a list of Gorsuch's extra-judicial writing and speeches. I would note that no fewer than five concern the subject of assisted suicide. In keeping with this Blog's policy, I might venture that this will become a topic of growing importance in the coming months and years of the Trump presidency.
One of the features of SCOTUSblog is the Petition of the Day; no doubt, they stole the idea from this Blog's former feature, the Bullshit Traffic Stop of the Month™. The nominee for the top petition last Tuesday was Ohio v. Hand. The unnumbered legions of my regular readers will remember that last year, in State v. Hand, the Ohio Supreme Court held that RC 2901.08 was unconstitutional, in that it permitted a juvenile adjudication to increase the penalty or level of offense for an adult crime. The decision was based on the idea that since a juvenile has no right to a trial by jury in a delinquency proceeding, the adjudication was based on judicial fact-finding, which is barred by SCOTUS' Ring/Apprendi/Blakely trilogy. Sure enough, the issue presented in the petition is
Whether the absence of the right to trial by jury in juvenile delinquency proceedings results in a juvenile adjudication falling outside the prior-conviction exception set out in Apprendi v. New Jersey.
Demetrius Jones was charged with a rape that had occurred twenty years earlier. Although the victim identified him by name and address, the police did zero investigation, and closed out the file a week later. The victim had said that Jones' mother was in the apartment where the incident occurred. By the time he was indicted, his mother had died.
Oscar Dickerson was charged with a rape that had occurred twenty years earlier. According to the victim, a car with Dickerson and two other males approached her while she was walking home. She got in the car, but the driver took her to a hotel, and dropped her off with Dickerson and the other man. They took her to one of the rooms and raped her several times. The police didn't believe her story, and dropped the investigation. By the time Dickerson was indicted, the driver of the car had died.
In both cases, the 8th District found prejudicial pre-indictment delay. Both cases went to the Supreme Court. The court clarified the standard for determining actual prejudice in Jones, and sent it back for reconsideration in light of that standard. Although it originally declined jurisdiction in Dickerson, it later vacated that decision and sent that one back, too, for reconsideration in light of Jones.
That's not the only difference.
Ever have a case where you worked out a pretty good plea bargain for a client, but you talk yourself blue in the face and he just won't take it? This week, I mean. Sometimes, you hope that the judge will say something that will jar your client back into reality.
That's what happened in State v. White. White was charged with several counts of child rape and kidnapping, with Sexually Violent Predator specifications, Repeat Violent Offender specifications, Sexual Motivation Specifications, He's a Really Bad Guy specifications, Why Do We Let People like this Live specifications ... well, you get the idea. His attorney worked out a deal to plead to a count of rape and one of kidnapping, but White turned it down.
On the Friday before the Monday trial, the judge held a Frye hearing to put the plea deal on the record. After the prosecutor recited it and White rejected it, the judge mentioned a trial which had just occurred across the hall. There, as the judge recounted, the defendant, facing virtually identical charges, had insisted on going to trial, only to see the jury troop back into the courtroom after only a couple hours of deliberations, with guilty verdicts across the board, meaning that the only way he's ever getting out of prison is in a box. White reconsiders, then pleads out the morning of trial.
And then reconsiders again, and appeals, arguing that the judge coerced him into taking the plea.
No new opinions from SCOTUS, but some news nonetheless. Maximum Leader President Trump will announce his nominee for the vacancy on the Supreme Court this week, we are told, among three finalists: Thomas Hardiman, Neil Gorsuch, and William Pryor. The links are to SCOTUSblog profiles of the three candidates, wherein we learn that Hardiman put himself through Georgetown Law School by driving a taxi. If confirmed, he would be the only justice who didn't go to an Ivy League law school and, I'm guessing, the only one to have driven a taxi. Pryor, we are told, "is no friend of criminal defendants," a view confirmed by the blog's recitation of Pryor's opinions in criminal cases. Gorsuch seems to be a Scalia clone, in both style and substance, which might not be too bad, at least in criminal law. While Scalia most certainly was not a friend of capital defendants, the staunch conservative's legacy includes some of the most defendant-friendly decisions to emerge from the Court in the past two decades, like Crawford and Blakely.
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