Bread and Circuses.   In my very first trial, sitting second chair in a personal injury case, I learned a valuable lesson.  During our client’s cross-examination, it came out that he had a prior injury he’d neglected to tell us about.  I shot a quick, “what-do-we-do-now” look at lead counsel.  Rookie mistake:  never react to testimony, because the jury will pick up on it, he told me later.  Ever since, I’ve made sure to impart that advice to my clients before trial.

So you can imagine my thoughts when one of the jurors in the Yazeed Essa case, in their press conference following their verdict finding him guilty of poisoning his wife, mentioned that one of the deciding factors was Essa’s lack of reaction to various testimony at trial. 

To be sure, there’s a difference to not reacting to a some particular bit of testimony, and not reacting when a picture of your dead wife and the two kids you haven’t seen in five years is flashed on a screen.  And let’s agree that the jury went about its task quite responsibly, deliberating for four days before reaching a verdict that many courthouse observers felt would have come much quicker. 

Still, the idea of a “jury press conference” strikes me as a bit unseemly, especially in the setting of a courtroom in which the victim’s family is gathered, with the family congratulating and thanking the jurors, and the jurors expressing sympathy for the family’s pain.  Besides, you never know what somebody’s going to say with the cameras rolling.  Imagine what might have ensued if one of the jurors had opined, “Maybe if he’d told us his side of the story, things would have been different” or “Hey, as far as I was concerned, this thing was over after his brother testified against him on the third day of trial.”  The spectacle served mainly to vouchsafe Warhol’s prediction of everbody’s being famous for fifteen minutes, and I’d hope that a bit more discretion on this sort of thing will be exercised in the future.

Perry Mason in the jury box.  Speaking of juries, one of the recent developments in trial practice which has displeased defense attorneys is allowing jurors to ask questions.  The trial judge in the 5th District’s decision last week in State v. Nicholson might be having some second thoughts about it, too.

Nicholson, an inmate at Richland Correctional, was charged with one count of assaulting a corrections officer.  The incident began with a confrontation between Nicholson and his case manager, who wrote up Nicholson for “disrespecting a staff member,” the particulars of which were that Nicholson called the case manager “a lazy mother-fucker.”  Apparently, understatement is a habit among the correctional staff at Richland; the sergeant conducting the hearing on the violation testified that when he imposed a 30-day commissary restriction on Nicholson, the latter became “pretty belligerent,” as evidenced by Nicholson shouting “fuck you, fuck both of you,” and “I don’t give a shit about this commissary restriction.”  Things spiraled downward from there, with Nicholson eventually punching the sergeant.

At trial, the jury asked five questions of the sergeant, and then five more of the next witness, another corrections officer.  The appellate court noted that “some of the questions appeared to slant toward the defense,” such as whether the sergeant had used profanity toward Nicholson, or whether the officers were allowed to sit together while filling out their incident reports.

After that, the gloves came off:  eight questions for the next witness and thirteen for the one after that, prompting an admonition from the trial judge:

I will just say one other thing to you, folks, when I give you the opportunity to ask questions, I don’t expect you to be an attorney who does a lengthy examination of witnesses. You can ask one question, but not a whole series of questions. So if you have one question, fine, but don’t give me three or four questions.

Hint taken.  No questions for the next witness, one for the next, and none for the defendant when he took the stand.

Nicholson argued on appeal that “the trial court committed ’structural error’ by admonishing the jury for posing multiple questions to the witnesses.”  Since this was reviewed under a plain error standard — there’d been no objection at trial — it met the fate that you’ve probably guessed.  Sadly, the jury did not give a press conference afterwards, or we might have learned which of them planned on going to law school.

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As I mentioned earlier, no Briefcase next week.  I’m off to Phoenix to soak up some sun, do some hiking, watch a ballgame or two.   Or more; seems that Arizona’s Supreme Court just passed a rule granting reciprocity to lawyers, meaning you can practice there without having to pass the Arizona bar exam.  (Although you do have a take a test on Arizona law.)  Food for thought.

By the way, the picture at right isn’t of Arizona, it’s Death Valley.  As you can see, I stood in the middle of the road to take the picture, and had to depend on my wife to warn me of approaching traffic from the rear.   That’s true love.

See you in ten days.

As the court of last resort on state law questions, the Ohio Supreme Court is asked to hear thousands of cases a year; it agrees to hear only a few hundred, and issues opinions in even fewer.  With that kind of workload, the court tries to get the maximum bang for the buck; opinions should resolve broad issues of law in a clearly settled fashion.  Last week the court accomplished just that in State v. Speer, a case pitting the right of a disabled person to sit on a jury against the right of a defendant to a fair trial. (keep reading…)

In my Case Update on Monday, I’d mentioned in passing the 2nd District’s decision in State v. Watkins.  Since Watkins is arguably the most interesting sentencing opinion since the Supreme Court gutted Ohio’s sentencing laws four years ago in State v. Foster, I figured that it deserved a more extended look. (keep reading…)

After my jeremiad last week about forests being felled so that the 8th District judges can write opinions regurgitating in unneeded detail the law on manifest weight and insufficiency, four decisions on the subject this week, and in every one the law is summed up in a tidy paragraph.  A firm believer in William Burroughs’ observation that there are no coincidences, I submit that my bona fides as an environmentalist are established.  I’m off to Washington to work on cap-and-trade climate legislation, my appearance no doubt a welcome relief to our beleaguered president, dismayed as he must be by news that the Olympic Committee took skier Lindsey Vonn’s gold medal away and gave it to Obama on the theory that nobody’s ever gone downhill faster than he has. (keep reading…)

We start our runup to Spring Break — I’ll be on vacation next week, filming more of those “Girls Gone Wild” videos I use to supplement the meager income from my law practice — with a paucity of news from DC; the only decision of note (to me, at least), was Johnson v. US, which concerned the Federal Armed Career Criminal Act.  The Court held that the Florida battery statute which required mere offensive touching of another person did not have “physical force” as an element, and thus didn’t constitute a “violent felony” for purposes of the ACCA.  That’s a big win for Johnson; ACCA status adds a 15-year mandatory minimum to a prison sentence.

Last year was a big year for decisions by the Court on the 4th Amendment:  we had Herring v. US, Arizona v. Johnson, and Arizona v. Gant.  This year might be a big one for the 5th:  the Court heard argument on its third Miranda case, Berghuis v. Thompkins, this past week.  Berghuis involves the question of when a suspect can be impliedly considered to have waved his right to remain silent during interrogation, and I’ll have more on that later this week.

I’ll also have more on the two big Ohio Supreme Court’s decisions last week, one in the “deaf juror” case, State v. Speer (oral argument discussed here), and the other, State v. Jackson, dealing with the question of derivative use of a compelled statement. 

Perhaps one of the most interesting decisions the court made last week was one that it… well, didn’t really make.  I’ve mentioned before that amendments to those statutes permit the Adult Parole Authority to impose PRC even if the trial court doesn’t order it, which seems to contradict earlier Supreme Court decisions that doing so would be a violation of the separation of powers doctrine.  The court’s managed to dodge that issue up to now, and does so again in State v. Fuller.  In that case, the appellate court had held that, because the new statutes allowed the APA to  impose PRC (and I’ll have another serving of alpahabet soup), the failulre of the trial judge to do so was irrelevant.  The Supreme Court reverses, the opinion’s single paragraph referring to State v. Singleton (discussed here).  Pfeifer writes a compelling dissent, arguing that the court should take up the issue of the new statutes’ constitutionality, to no avail.

On to the courts of appeals, and some especially good decisions from the 2nd District… (keep reading…)

Once upon a time.  Travis had done all the right things, and he said all the right things.  I’d done my part, for sure.  Travis, who’d been down to the joint a couple times in the early part of the decade, had stayed out of trouble since then, until one night he came home and got into a scuffle with his girlfriend. There was some stuff about not letting her leave the house, and when he finally fell asleep on the couch, she called the cops.  They came in and arrested him, and when he went to grab for his pants, several bags of crack fell out.  But I’d gotten the prosecutor to drop the kidnapping charge, and Travis was looking at only a misdemeanor domestic violence and a trafficking charge.

That was still enough to get him shipped, so I’d told him he needed to clean up his act and prove to the judge that he was serious about overcoming his habit.  And he’d followed my advice to a T.  At the sentencing, I was able to give the judge attendance sheets showing that in the past 41 days, Travis had been at a Narcotics Anonymous meeting 26 times.  The judge, very knowledgeable on the subject of addiction, quizzed Travis about the meetings, his efforts to get a sponsor, and so forth.  Travis answered easily, and also told the judge about how his efforts had allowed him to be reunited with his girlfriend and his three kids, and how he’d realized how important it was for him to be a good father.  He’d been clean now for forty-five days.  One day at a time.  He’d only worked a couple of jobs in the past three years, but he was getting that together, too, and he’d lined up a couple of interviews.  The judge, obviously impressed, gave him two years of community control sanctions.

Outside the courtroom, Travis hugged me and thanked me profusely.  “You did what you had to do, man,” I said, giving credit where credit was due.

At which point Travis looked away, then back at me, then dropped his voice to a conspiratorial hush.  “Hey, you think they’ll test me today?”

*   *   *   *   *

For the record, every notice of a hearing I send to a client in a criminal case contains this phrase at the bottom:

If you plead guilty or are convicted on the date of the hearing, you will be tested for drugs and alcohol.

Just like that, bolded.  I include this to prevent a repeat of the long-ago conversation which prompted it, after I went out and explained to my client that the pre-sentence report showed he’d tested positive for drugs when he went down to the probation department right after his sentencing:

CLIENT:  But you didn’t tell me I’d be tested for drugs.

ME:  Gosh, you’re right.  It’s my fault.

Speaking of sentencings, the Saga of Shawn comes to a merciful end.  For those who missed previous episodes, a quick recap:

• Shawn is charged with leading the police on 100-mph automobile chase.  (A 100-mph horseback or foot chase would certainly be memorable, no?)  I cleverly find proof that he wasn’t the driver, and the prosecutor agrees to drop the fleeing charge and let Shawn plead to a 4th and 5th degree felony.
• Which Shawn would’ve done on the day of trial, had he shown up.
• Notwithstanding Shawn’s absence, when he does show I talk the judge into letting him back out on bond, talk the prosecutor into dropping the 4th degree felony, and get the judge to agree to give Shawn probation.
• Which he would’ve done at Shawn’s sentencing, had Shawn shown up.
• Shawn’s mother instead took him to a funeral, then rejected my advice of having him turn himself in.

So Shawn gets pick up in the inevitable traffic stop, and here we are in front of the judge.  I make the pitch, in roundabout fashion, that Shawn’s mother is the real bad guy here, and she probably is:  I called and told her the day before the sentencing to make sure Shawn showed up for that, and she decided it was more important to take him to the funeral.  But the judge pointed out that Shawn also had about four outstanding warrants for other misdeeds; “We can’t blame that on Momma, can we?”

The judge gave him six months.  Outside, the mother asked only a single question:  “When does he get out?”  “With jail credit, he’ll do another three months,” I answered, suppressing the urge to strangle her.

Boo f*****g hoo.  The word for today is Schadenfreude, a German word meaning, “taking delight in the misery of others.”  (And if anybody had a word for that, you’d figure it would be the Germans.)  It’s prompted by the release of the 2010 Client Advisory, a publication intended to advise the major legal firms — affectionately known as BigLaw — of the legal market.  And the news wasn’t good; we are told that “it was the worst year for the legal market in at least the past half century.”  We’re introduced to a number of charts, all of which have a downward tilt as the year progresses, which resulted in the top 250 firms laying off a total of 5,259 lawyers in 2009, with associates hardest hit, their ranks thinned by almost 9% during the year.

But all was not lost.  While many of the BigLaw markets — general corporation, tax, real estate, and capital — went to negative growth by 10 to 15%, there was one bright spot:  the demand growth in bankruptcy jumped by about 20%.

Sometimes oral argument gives you no clue as to how an appellate court is going to rule on a case.  Sometimes it does.  The oral argument before the US Supreme Court on Tuesday in McDonald v. City of Chicago is definitely of the latter variety.

(keep reading…)

Of all the Warren Court decisions expanding the rights of the accused, none earned more enmity over the years than Miranda v. Arizona, the 1966 ruling which required police to give a four-part warning to suspects before interrogation.  Prosecutors, police, and conservative commentators predicted that the decision would be devastating to law enforcement, given that about 40% of crimes are solved through confessions.   

So now I sit here, looking back on 34 years of practice of criminal law, and wonder why the hell so many of my clients wouldn’t shut up.  And my experience isn’t atypical; studies have shown that over three-quarters of suspects waive their Miranda rights.  What happened?

Those of the liberal persuasion would argue that Miranda has been undercut by the Court itself in its subsequent decisions on the scope of Miranda.  Additional fodder for that theory was provided by two more decisions last week.

(keep reading…)

The court gets back on track with another pro-defendant search decision, and comes up with several good opinions.  And Your Faithful Correspondent comes up with a good idea for helping to preserve the environment. (keep reading…)

Twin rulings on Miranda were the flavor of the week down in DC:  in Maryland v. Schatzer, the Court announced a new rule as to when police could resume interrogation of a suspect after he’d invoked his Miranda rights, and in Florida v. Powell, the Court upheld a version of the Miranda warnings which didn’t specifically advise the defendant that he had the right to have counsel present during questioning.  I’ll talk about those in more detail later this week. 

The third of a trio of “honest services” cases hits the Supreme Court for argument this week.  I explained the problems with the law when the first two were argued last December, but those involved technical applications of the statute.  The argument this week, in the case involving former Enron exec Jeff Skilling, squarely presents the issue of the law’s constitutionality, primarily in terms of its vagueness.  No decision has been rendered in the first two cases, and the outcome of Skilling’s case could decide those as well.

An even bigger case, potentially, is McDonald v. City of Chicago, which presents the question left unresolved two years ago in DC v. Heller:  does the 2nd Amendment apply to state and local governments?  The decision could have some major ramifications on state gun regulations and laws.  Then again, I thought that Heller would, too (and I wasn’t alone), and that didn’t exactly pan out.  McDonald will be argued tomorrow, so I’ll see how that goes, and I may have a post on that, too.  Or not.

One of the developments in criminal law over the past decade or two is the substantial expansion in juveniles being prosecuted as adults, and especially the inclusion of offenses for which bindover to adult court is mandatory.  Two years ago, in In re AJS, the Ohio Supreme Court had held that the state could appeal a juvenile court’s ruling denying mandatory bindover.  Last week in In re MP, the court unanimously held that discretionary bindovers — where the court finds probable cause to believe the juvenile committed the offense, but concludes that he’s amenable to rehabilitation in the juvenile system — are not appealable.  Considering the attitude toward crime and juveniles, don’t be surprised if the legislature changes this.

That was about the only decision of note in Columbus, other than six — count’em, six — disciplinary decisions involving wayward attorneys (and one judge), so let’s get to the courts of appeals… (keep reading…)