What’s that stuff about the wheels of justice grinding slowly?  Don’t tell that to Mark Brown.  Well, actually you couldn’t if you wanted to:  he’s dead.  He’d been on Ohio’s death row since he was convicted of killing a Youngstown store owner and a clerk back in 1994, while apparently trying to copy a scene from the movie “Menace II Society.”  There was the last-minute flurry of attempts to obtain a stay of his execution, culminating in the Supreme Court’s order last Wednesday giving the State until six that evening to respond to Brown’s latest memorandum in support of jurisdiction.  Whatever the prosecutor managed to cobble together at the last minute worked:  Brown’s appeal was refused, and he was executed the next morning.

In other decisions, the court wades back into the PRC swamp in State v. Jordan.  The court has consistently held that in order for post-release controls to be valid, the trial court must not only include imposition of them in the journal entry, but must orally advise the defendant of them at sentencing.  Jordan was convicted of escape, and argued that there was no evidence introduced of the latter.  No matter, says the court; there was ample evidence that Jordan knew he was under PRC — he’d reported to three meetings with his PO — and that was sufficient.  It’s a very narrow ruling, though:  there was no evidence to show that the judge hadn’t orally advised Jordan of PRC.  Simply put, the case stands for the proposition that the State doesn’t have the burden of proof on that point, and in the absence of evidence on that, the State can still make its case.

The court handed down its usual spate of disciplinary decisions, one with substantial impact on criminal discovery, the other of which teaches that if you’re planning on getting married after your divorce is final, you might want to hold off telling your soon-to-be ex-wife about the impending nuptials until after she’s signed off on all the paperwork. 

On to the courts of appeals… (keep reading…)

Mo’ money, mo’ money.  The  US Supreme Court’s decision a couple of weeks back in Citizens United v. FEC,  which allowed corporations (and unions) to make unlimited expenditures on behalf of candidates, got approval this week from an unlikely quarter:  Ohio Supreme Court Chief Justice Tom Moyer.

“There is a silver lining to the decision,” [says Moyer].   “For those of us who have been trying to impress upon the public the deleterious effects of money in these elections, it helps us make the point that we need to get the money out.”

Moyer’s been flogging the idea of merit selections for judges for years.  Whether Citizens United gives the cause a boost remains to be seen.  Last year, I wrote about the Supreme Court’s decision in Caperton v. Massey, where the president of a West Virginia coal company which had gotten an adverse jury verdict — $50 million of adverse, to be exact — spent $3 million on the campaign of a state supreme court justice, who after his victory obligingly provided the deciding vote in that court’s 3-2 reversal of the verdict.  The Supreme Court held that the justice’s failure to recuse himself was a due process violation, but if that’s resulted in a popular uprising against elected judges, it’s escaped my notice.  

Even here in Ohio, the public seems inured to any suggestion that campaign contributions distort justice.  Two years ago the Supreme Court upheld the new tort reforms which the court had rejected three times in the past twenty years.  As I mentioned here, the turnabout came after the health and insurance industries dumped millions of dollars into judicial campaigns seeking the replacement of the justices who balked at the previous legislation.  That didn’t energize the elect-judges movement, either.

My views on the debate have undoubtedly been shaped by the experience of Cuyahoga County, where the roster of the 34 judges reads like the cast of a World War II movie platoon, with every name representing an easily identifiable ethnic group.  (A not particularly diverse platoon:  Irish and Italian names predominate.)  The experience has been decidedly mixed.  A decade or so ago a lawyer decided to capitalize on the fact that his surname, Gallagher, was exceedingly popular among the electorate.  He spent $50 on his campaign (the filing fee), and coasted to victory.  I’d known him before he was elected, and found no discernible legal abilities and some tendency toward personal slothfulness; the latter assessment was borne out a few years later when he was forced to give up his seat after buying drugs from an undercover DEA agent.

Still, the bench has come a long way from when I first started practicing, when more than an occasional seat was held by some hack who’d been given a sinecure by the (usually Democratic) party for his service.  (One was of such limited acuity that his bailiff had to meet him over at the Terminal Tower each morning to make sure he found his way to the Justice Center.  I’m not making that up.)  There’s really none of that any more.

As for the name game, that can cut both ways, too.  For a long time Russo was one of the most marketable names in the county; at present, there’s five of them on the General Division bench.  But then Frank Russo, the county auditor and related if at all only distantly to any of the judges, had to go and get himself targeted in a corruption probe by the Feds that’s currently at 18 months and counting

And some of it over — gulp — campaign contributions.

How many dresses do you need for work?  Especially if you’re a guy?  One of the common complaints about class actions is typified by what happened in the Grand Theft Auto case, which I discussed two years ago:  while each member of the class got between $5 and $35, a total of $26,505, the 12 law firms which represented the plaintiffs were awarded $1 million in fees.  (Or would have; after protests of the fee amount, the judge wound up decertifying the class, effectively ending the lawsuit.) 

A California judge came up with a different approach to fees.  A class action suit against a women’s apparel retailer had resulted in a mediated settlement whereby the lead plaintiff would get $2,500, the plaintiff’s attorney would get $125,000, and the remaining members of the class would get gift cards worth $10 each.  Filling in for the judge who’d preliminarily approved the settlement, Judge Brett Klein decided at the hearing on the settlement that the lawyer would get paid in $10 gift cards, too:  3,500 of them in January of 2009, followed by another 750 a month for the next year.

For that, as this story (hat tip to Overlawyered) tells us, he got censured by the state Commission on Judicial Performance.  I don’t know; I think it gave the lawyer a good chance to get in touch with his feminine side.

Truth in advertising.  Yeah, I know, you’re way behind in the tech revolution, and have finally decided to get a web site, but aren’t coming up with any good ideas of how to grab potential clients’ attention.  You might want to check out Cracked.com, which boasts of being “America’s only humor and video site, since 1958,” and recently featured the “5 Creepiest Defense Attorney Websites.”   The award for #1 goes to the website of the Florida defense firm of Pawuk and Pawuk, P.A., particularly for the page of the site, shown below, that touts the firm’s expertise in defending against domestic violence charges.

I’ve got to agree with Cracked.com’s assessment that “assuming the image is supposed to be related to the theme of the site, the message seems to be that sometimes women need to shut their goddamn mouths.”

One of the major differences between criminal and civil cases is that the latter afford several opportunities for trial avoidance.  No matter how overwhelming the defendant’s guilt, or how weak the state’s evidence, the only way to determine the result is to put twelve people in the box and let them sort it all out.

Not so in the civil arena.  There are several weapons in the litigants’ arsenal which allow a judge, not a jury, to decide the case.  To be sure, they’re not easily available.  One, a motion to dismiss for failure to state a claim under CivR 12(B)(6), can be granted only where the plaintiff has alleged no set of facts which would entitle him to relief under any accepted legal theory.

Or at least that’s the way it worked until recently. (keep reading…)

On Thursday I wrote about the Supreme Court’s decision last week in State v. Williams, bemoaning the fact that while the court had agreed that felonious assault and attempted murder were allied offenses, it bought into the idea that Williams could be convicted of two separate counts of attempted murder because he’d fired two shots at the victim.  Several people have suggested I’m wrong, so I took another look at the decision. (keep reading…)

Criminal defendants enjoy the best week of the new year, with three reversals.  The court dishes out a bevy of civil decisions, too, the moral of which is that in today’s economy, it’s best to do whatever you can to hold onto your job. (keep reading…)

Not with a bang but a whimper:  after all the talk about the Supreme Court’s using Briscoe v. Virginia to take another look at Melendez-Diaz v. Massachusetts, and possibly overrule it (see my posts here and here), last week the Court issues a per curiam decision vacating the Virginia Supreme Court’s decision in Briscoe and remanding it back for reconsideration in light of Melendez-Diaz.  And last week the Ohio Supreme Court writes finis to State v. Crager.  After SCOTUS had vacated Crager and sent it back for review, the Ohio Supreme Court had initially done the same:  reversed its decision and remanded the case back to the trial court for determination of whether Melendez-Diaz barred the substitute analyst’s testimony.  I questioned the decision, and the court, undoubtedly prompted by my criticism, decided instead to itself reconsider the case.  Upon further reflection, the court apparently concluded I wasn’t worth listening to — a sentiment shared by countless others, including my wife — reinstated its earlier decision, and sent the case back down.

SCOTUS is in recess until February 19.  Its Ohio counterpart handed down a couple of decisions, one of which, State v. Williams, we discussed on Thursday, and we’ll talk about again this Wednesday.  Another was Graves v. Circleville, involving a case in which police allowed Cornelius Copley to retrieve his car from the police impound lot the day after he was arrested for drunk driving; the next day, while again driving drunk, Copley killed Jillian Graves.  The police defended her estate’s suit by claiming that they were entitled to a “public duty” exception that the Supreme Court had created back in 1988:  that an employee can’t be held liable for breach of a duty he owes the general public, rather than a specific individual.  The court scraps the public duty rule, noting that it was adopted before the current sovereign immunity statute, and agreeing with the 4th District that the estate had presented sufficient evidence to survive summary judgment on its claim that the officers’ conduct constituted “willful and wanton misconduct,” exempting them from the protection of the statute.

So, onward to the courts of appeals, where the only cases of note are criminal… (keep reading…)

My dream come true:  more ways to look up cases.  Or rather, new ways.  In the face of declining revenues growth — 1% to 2% a year, as opposed to 5% to 7% a year in the past — Lexis and Westlaw have decided to give their programs a major facelift.  More than just a facelift, actually.  This article, which takes a first look at Westlaw’s overhaul, scheduled to debut next Monday, points out that the “this is no mere cosmetic redesign. WestlawNext completely changes the search interface and the search engine behind it.”  (A screenshot of the new interface, substantially streamlined from the present one, can be found here.)  Lexis is coming out with a revamped product — imaginatively titled “New Lexis” — later this year. (keep reading…)

As the countless legions of regular readers of this blog can contest, I take second place to no one in lambasting the current state of Ohio’s allied offense law.  Well, maybe second place to one person:  Ohio Supreme Court Justice Judith Lanzinger.  Judging from her partial dissent in yesterday’s decision in State v. Williams, she’s none too pleased with it, either. (keep reading…)

In September of 2008, Ohio’s New, Improved Castle Doctrine went into effect.  This wasn’t the one  from Merry Old Englande, which held that the duty to retreat in self-defense cases did not apply if the defendant was in his own home.  The new statute, RC 2901.05(B), as I explained here, basically creates a rebuttable presumption that someone in his own home who uses deadly force to expel an intruder has acted in self-defense.  

Last week’s decision by the 8th District in State v. Johnson is the first appellate decision on the new statute, and the result is not helpful.

(keep reading…)

No search cases, the court addresses the Castle Doctrine, which we’ll discuss tomorrow; the rest is relatively ho-hum.  We’ll take a look anyway, ’cause that’s why you pay me the big bucks. (keep reading…)