May 2006 Archives
I've had two lawyers ask me so far if I'm doing this to make money. Actually, my wife's not completely convinced that my law practice is intended to be profitable. As she said the other night, "The only thing that amazes me more than what you'll do for money is what you'll do for no money."
Speaking of no money... A personal injury defense lawyer once told me that the McDonald's coffee case was the best thing that ever happened to the insurance industry. More than a decade later, after countless stories of juries returning defense verdicts in cases of admitted liability, I don't think there's much room to debate that proposition.
Actually, there are three different ways in which plaintiffs can get hammered here.
In State v. Moore, the court reiterates for the umpteenth time that preparation of drugs for sale and sale of drugs are not allied offenses of similar import, and that the defendant can be sentenced for both. There's also case law which holds that possession and trafficking aren't allied offenses, but there may be a situation where it is.
An interesting case came down last week that could have major ramifications on the way expert testimony is prepared. The plaintiffs' experts in a wrongful death case were deposed, and testified that they discussed their findings with a nurse-paralegal working for the plaintiffs' attorney, who then prepared a report which the experts signed. Could the defense use that as a justification to take the deposition of the nurse-paralegal?
A gorgeous Sunday morning, marred only by the news of an outbreak of bird flu in Parma. On to the law....
Location, location, location. Every criminal defense attorney knows that the Cleveland Police Department subscribes to Tuco's Law of Human Dichotomies in believing that there are two kinds of people in this world: those who live in "high crime areas," and those who don't, the former group coinciding fairly precisely with the population of the City of Cleveland.
Fortunately, it hasn't spread to the suburbs, at least according to the court in Euclid v. Favors, which involved the propriety of a stop and frisk by a Euclid policeman.
The "wet basement" case -- every lawyer's favorite -- is the subject in Zappitelli v. Miller. The plaintiffs had shelled out over half a million dollars for the property, only to find a week later that the basement was flooded and that the land around the house looked like the set of Waterworld. To top it off, the plaintiffs learned that a few days before the sale, the defendants had been told of the presence of active mold in the basement, but kinda forgot to put that on the disclosure form. The plaintiffs sued, and were awarded $134,000 in damages for fraud, negligence, and breach of contract. The defendants appealed the verdict, and the plaintiffs cross-appealed on the denial of their request to rescind the contract, and of attorney fees.
The court rejected the defendants' arguments, which challenged the verdict, then turned to the cross-appeal. It held that rescission wasn't an available remedy because the disclosure statute, RC 5302.30(K), essentially prohibits rescission as long as the seller provides the required disclosure form.
Spruced up the site a bit. I also turned on the comments, so you can respond to any of the posts, and you can also drop me a line if you'd like.
The police set up a buy of five ounces of crack, and when the deal goes down, they wind up with 130 grams of baking soda for their troubles. Can the seller be given an additional ten-year sentence as a major drug offender?
To the average person, that question might have a certain Alice in Wonderland quality about it, but it's always been the law that one can be convicted of offering to sell drugs even when the "drugs" are bogus. (In fact, the Court ruled back in 1987 in State v. Mughni, 33 Ohio St. 3d 65, that offering to sell drugs which turned out to be fake and selling counterfeit substances under RC 2925.37(B) weren't allied offenses: a defendant could be convicted of both.) But in a case decided yesterday, the Supreme Court rules that some measurable quantity of an actual controlled substance has to be present in order to impose the MDO penalties.
The court reverses a conviction in State v. Strowder because the trial court didn’t permit defense counsel to cross-examine the co-defendant, who’d copped a plea and was testifying for the state, about the potential penalty he’d faced if he hadn’t worked out a deal. Howard, the co-defendant, was facing 100 years, and wound up with eight after a plea. The state argued that what Howard could actually get was irrelevant; the proper focus was on what Howard believed he was facing. While that argument is correct – the co-defendant’s subjective belief is the relevant inquiry for bias – the court found that Howard’s equivocations about how many counts he was looking at warranted full cross-examination as to the penalties.
Strowder cites approvingly, and at some length, the Hamilton County Court of Appeals decision in State v. Gonzalez, which deals with the subject in much more detail. In addition to discussing why the focus should be on the co-defendant’s subjective belief, Gonzalez sets up a two-part test for determining how far defense counsel can go in cross-examination: since the exposure of a witness’ bias is a "core value" of the right of confrontation, the appellate court will review that de novo, but once defense counsel has been allowed to point that out, the trial court can impose limits on how much counsel can "hammer the point home," and the court’s decision will be reviewed only for abuse of discretion. It’s an interesting case, and one a defense lawyer should have handy when faced with the prospect of cross-examining an accomplice who’s turned state’s evidence.
Got appointed to represent a defendant in a car theft case, so I went over to the jail today to interview him. We went through the preliminaries, and then I asked him to tell me what happened. "Well," he says, "I'd gotten out of prison earlier that day..." That'll look good on the "Defendant's Version" section of the presentence report.
On to the law.
These boots weren't made for walking... An employee is required by his company to wear heavy-duty workboots on the job, and although the employee decides which boot to purchase, the company has to approve the choice. The employee then winds up with an ulcerated blister on his foot because the boot proves defective. Is this covered by workers comp?
No, according to Anderson v. Sherwood Food Distributors. Judge Corrigan's majority opinion holds that while the injury occurred in the course of Anderson's employment, it didn't occur within the scope of his employment: "his employment did not cause the blister - his defective boot did." The court distinguishes a 1930 case in which the employee had died - yes, died - from a blister caused by walking over rough ground at a construction site; in this case, the court holds, "nothing particular to the Sherwood workplace contributed to the injury." Judge Blackmon's dissent argues that the what the court is actually doing is applying the "special hazards rule," by holding that in order to be compensable, the injury must arise from some facet of employment that the general public is not exposed to, and that the special hazards rule has no application where the injury actually occurs on the employer's premises.
The trial judge's competency examination of a 12-year-old alleged rape victim was not sufficient, holds the court in In re J.M., in light of the witness' substantial mental disabilities:
The record is replete with indications that B.D. was in special education classes, that she had and continues to have imaginary friends, that she had at least one past diagnosis of schizophrenia, and that her ability to recollect even routine information such as the day, month, and year was severely limited.
Judge Kilbane's opinion contains an excellent summary and analysis of the law pertaining to competency of a witness under Evid.R. 601(A), and the procedure the courts should use in making that determination.
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