Got a lot of work to catch up on today, so just a short note… 

Back in 2004, the Ohio Supreme Court, in Ohio v. Jordan, held that a trial court had to apprise the defendant of post-release controls (PRC) both at the sentencing hearing and in the sentencing journal entry.  Earlier this year, it followed up that decision by holding, in Hernandez v. Kelly, that if the Court failed to do that, PRC couldn’t be imposed. 

This issue often arises on appeal, and the appellate court routinely remands the case for resentencing, telling the judge to get it right.  But what happens if there’s not an appeal?  As I pointed out a couple months back, failure to notify a defendant of PRC precludes a later conviction for escape.  If that was questionable before Hernandez, it certainly isn’t afterward.  But the sentencing court couldn’t correct the error on its own, because it loses jurisdiction to modify sentencing after the defendant is sent to the institution.

So a couple of weeks ago, new section RC 2929.191 went into effect, allowing the trial courts to correct a sentencing entry to include PRC.  The court has to hold a hearing in order to do that, at which the defendant must be present, either in person or through the magic of video.

One of the interesting things about doing research, especially on the Internet, is that it can lead you to all kinds of weird stuff.  Last week I had a post about a concurring opinion by Judge Danny J. Boggs, the Chief Judge of the U.S. 6th Circuit Court of Appeals, in a recent death penalty case.  The opinion didn’t have his full name, and I wanted to use that in the post, so I Googled “boggs judge 6th circuit.”

Well, according to an article in the New Yorker five years ago that I stumbled across, it turns out that Judge Boggs has what can only be described as a unique method of winnowing out potential law clerks.  Eschewing an examination aimed at determining their legal skills, he gives applicants what he describes as a “general knowledge” test:  around 70 questions along the lines of, “Who gave the famous speech ‘Ain’t I a Woman?’ ” (Sojourner Truth); “What does the Herfindahl-Hirschman index measure?” (industry concentration); “Who killed (a) Duncan (b) McKinley (c) Cock Robin (d) Ron Goldman, and (e) Vaudeville?” (Macbeth, Czolgosz, the sparrow with the bow and arrow, OJ Simpson, movies), and “What is the world’s largest city beginning with an O?”  (Osaka, Japan).

This has met with mixed reactions among the test-takers, with some describing it as “cool,” and others dismissing it as irrelevant to the job.  “He might as well have assigned us a challenging home repair project,” sniffed one lawyer who withdrew his application after seeing the quiz.  Even Boggs seems to acknowledge that it has limited value in gauging a potential law clerk’s merits; the best score anyone ever got on the quiz was 75%, but that was by a 46-year-old lawyer who Boggs didn’t hire because “he had terrible grades.”

There was one side benefit, though.  No fewer than three of Boggs’ law clerks went on to appear on Who Wants to Be a Millionaire, the ABC quiz show, and one of them won $250,000.  The show allowed contestants a “phone-a-friend lifeline” — someone they could call if they got stuck for an answer.  Two of the three picked Boggs.  He himself was stumped by the question, “how many actors passed through the Three Stooges comedy trio?”

Oh, by the way, just in case you’re considering applying for a job as a clerk for a federal judge, the answer is “six.”

Summertime, and the living is easy…  So is the case reading; not much going on….

9th District upholds provision requiring arbitration of nursing home malpractice claim, but it’s not as bad as it sounds:  provision was clearly marked, wasn’t a condition of admission, and plaintiff was 60-year old who’d operated numerous businesses… 6th District reverses dismissal of suit by patient who claimed his doctor was negligent in not sending letter to patient’s employer saying he couldn’t work, resulting in patient losing job…

10th District holds that menacing by stalking doesn’t require proof of mental distress, only that defendant caused the victim to believe that he “will cause mental distress to the victim.  Yeah, I don’t quite follow that, either… 12th District rejects incompetence of counsel claim based on lawyer having defendant testify, thus letting jury know about defendant’s numerous prior convictions; this is in keeping with case law that holds courts won’t second-guess counsel’s tactical or strategic decisions… 

Great case out of the 10th District affirming a manslaughter conviction.  Not much in the way of novel applications of law, but the court’s recitation of the facts is worth a read on its own:  The setting is a trailer park, and you’ll be introduced to a bevy of fascinating characters, including Big Johnny, Little Johnny, Josh, Natasha, Satasha, and Misty.  This excerpt will give you a flavor of the events on that fateful night:

After the gunfire, Little Johnny grabbed a baseball bat and jumped onto a trunk of a nearby car. Little Johnny and Michael had a brief stare-down, and when Michael looked away, Little Johnny struck him with the bat, causing Michael to fall. Thereafter, Little Johnny checked on Big Johnny, who did not respond, and then Little Johnny went back to Joe, who had also been shot during the gunfire, and “stomped him in the face.”

Of course, instead of reading the opinion on the case, you can always wait for it to show up on an episode of Cops.

Have a good weekend. 

It’s Answer Day at the Briefcase….

My client’s charged with trafficking in crack cocaine, but it’s actually powder.  What should I do?

Nothing.  Back in 1983, the Ohio Supreme Court had a case in which the indictment alleged that the defendant had trafficked in controlled substances, without specifying what those substances were.  In State v. Headley, 6 OSt3d 475, the Court held that the type of drugs was an essential element of the crime, and that it couldn’t be supplied by an amendment to the indictment under Rule 7(D).  Wait until trial, then hand the judge a copy of Headley, and that should be that.

Maybe.  That’s not absolutely foolproof, by any stretch:  Headley noted that the penalty you’d get depended upon the substance you were trafficking, and there’s a big difference between what you get for peddling a Schedule IV drug versus a Schedule I. With cocaine, however, there’s no difference between powder and crack in the classification, it’s just a question of amount.  Still, it’s a decent argument, and what are your alternatives?

Can a policeman search the interior of a car after a traffic stop?  If they make an arrest, sure; US v. Belton established a “bright line” rule that police may search the interior of a car, and any closed containers in it, as an incident to an arrest, even after the occupant’s been removed from the car.  And if the car’s impounded, of course, they can do an inventory search.

But things are a lot dicier if it’s an ordinary traffic stop.  Since the traffic stop is analogous to a Terry stop, the search of the car would be analogous to a Terry frisk.  As I explained a couple months back, just because the police have a basis for a stop doesn’t mean they have a basis for a frisk; in order to justify the latter, they have to have a reasonable suspicion that the suspect is armed and dangerous.

There’s a lot of case law out there which has upheld searches of the interior of a car after a traffic stop where the police have some reason to believe there’s a weapon in the vehicle, such as furtive movements by the driver or the passenger.  But there are a number of cases out there, like this one and this one, which hold that, in the absence of those factors, a “routine” search of the interior of the car after a traffic stop isn’t going to cut it.

This is especially relevant in a situation that’s cropping up with some frequency:  the cop stops someone for a traffic violation, takes them out of the car and puts them in the cruiser to get the information, then decides he needs to conduct a “protective sweep” of the interior, or at least those areas reachable from the driver’s seat, before he lets the driver get back into the car.  (I’ve got one like that up on appeal now.)

It’s tempting to suggest that such searches are necessary to protect officers because of the dangers to the officer inherent in traffic stops.  There doesn’t seem to be much statistical basis for that belief, however.  Of the 154 police officers who died in the line of duty in 2004, more died as the result of accidents than intentional acts.  It’s impossible to figure out how many traffic stops there were in the corresponding period of time, but there were 2.5 million in the State of Illinois alone in 2005. 

I’m not going to do the math, but it seems that the possibility that a driver might return to the vehicle, grab a gun, and shoot the arresting officer — especially after he’s been released, and is free to go — doesn’t seem to be a sufficient likelihood to warrant granting police an automatic right to search a vehicle any time they make a stop.

In the weekly roundup a little while back, I mentioned an 11th District case which held that a expert testimony wasn’t necessary to prove a knee strain in a workers comp case.  The same question, of course, can arise in any PI case:  can you prove an injury case without having a doctor testify? 

The lead case on this is the 1976 Supreme Court decision in White Motor v. Moore, 48 OSt2d 156, where the court held that expert testimony wasn’t required if the causal connection between the injury and the subsequent physical disability is within “common knowledge.”  Moore involved a bruised knee, and it’s easy to understand the argument that if someone has a bruise on his knee after he bangs it on a pipe, you don’t need a doctor to tell you that the bruise was caused by the banging.

You might think that the breakdown falls pretty nicely along the axis of “hard” injuries, like bruises and bone-breaks, versus soft-tissue injuries, but it ain’t necessarily so.  Courts have said expert testimony isn’t necessary to prove that a staph infection resulted from a wound, and back in 1992 our court held, in Perry v. LTV Steel Co., 84 OApp3d 670, that it was common knowledge that “a person who trips, falls, becomes groggy and suffers immediate pain certainly can experience a sudden loss of consciousness.”  

In fact, courts have even been willing to dispense with the need for expert testimony in soft-tissue injuries.  A good case to start with here is the 4th District’s decision five years ago in State Farm v. Lucas.  It noted that courts had come to rather inconsistent results on that subject, with some holding that neck and back injuries require expert testimony, and others holding that it’s “common knowledge that rear-end collisions can cause head, neck, and shoulder injuries.”  (To give you an idea of the confusion, one of the cases the court cites is a 1994 decision out of our county, where the court held that a shoulder strain didn’t require a doctor’s testimony, but neck and back strain did.)

The Lucas court didn’t do a whole lot to clarify the confusion.  In fact, they might have added to it; you tell me how definitive this is:

In a rear-end collision in which the lead vehicle sustains heavy damage, it is common knowledge that the occupants of the lead vehicle could sustain neck or back injuries. On the other hand, if there is little or no damage to either vehicle, or if the plaintiff delayed seeking medical attention, then it is more likely that expert testimony is necessary to establish the cause of the plaintiff’s injuries.

Terms like “heavy damage” and “delayed seeking medical attention” certainly leave a lot of wiggle room, don’t they?

The reason this is topical is because some insurance companies are forcing trials in personal injury cases with low prospective damage awards, knowing that it’s not cost-effective for the plaintiffs to pay a grand or more for a doctor’s deposition or testimony.  Even if you’ve got a soft tissue injury, the right circumstances and some digging through the case law here (and where it will lead you) might enable you to avoid that expense.

Do defense lawyers intentionally throw death penalty cases?

That’s the intriguing suggestion offered — perhaps — by Chief Judge Danny J. Boggs of the US 6th Circuit Court of Appeals in a case decided yesterday.  Poindexter v. Mitchell was an appeal from a district court’s decision to grant habeas relief to Poindexter, who’d been convicted and sentenced to death back in 1985.  The appeals court rejected the claim that trial counsel had been incompetent during the guilt phase, but agreed that counsel had failed to properly investigate Poindexter’s troubled family background, and that this consituted ineffective assistance and required vacating the conviction.

In his concurring opinion, Judge Boggs noted that research that’s been done in capital cases has shown that evidence regarding the defendant’s poor family background has a minimal impact on the jury, and might actually be counterproductive:  a jury which hears that the defendant was horribly abused and mistreated might conclude that he’s such “damaged goods” that his life isn’t worth preserving.  According to Judge Boggs, then, any “sentient attorney” representing a capital defendant would have to come to this conclusion:

If I make an all-out investigation, and analyze and present to the jury every possible mitigating circumstance, especially of the ‘troubled childhood’ variety, it is my professional judgment that I may thereby increase the probability of this extremely repellant client escaping the death penalty from 10% to 12%. On the other hand, if I present reasonably available evidence that I think has as good a chance as any other in securing the slim chance of mercy from the jury, I will have a 50-99% chance of overturning the extremely likely death penalty judgment 10-15 years down the road. I will thus have secured many additional years of life for the client, and he may very likely avoid capital punishment altogether.

In other words, the most competent representation a lawyer can provide is to incompetently fail to investigate and present evidence of his client’s troubled background.

Whether Judge Boggs is simply noting an irony here, or actually believes that attorneys are taking a dive in death penalty cases, isn’t clear.  The other two judges on the panel wrote concurring opinions expressing disagreement with his suggestion, and Judge Daughtery was particularly outraged, finding his comments “truly disturbing,” and that the problems Judge Boggs addressed are not due to some “vast, diabolical, defense-bar conspiracy to derail our criminal justice system,” but to the fact that “those lawyers representing the absolute pariahs of society are frequently hamstrung by a critical lack of relevant experience, an obvious lack of time and resources, or both.”

Judge Boggs’ comment about the irony of the situation — that a lawyer does a better job for his client in a death penalty case by doing a shoddy job in the mitigation phase — is unquestionably accurate, although his implicit suggestion that lawyers are consciously deciding to do just that is flatly absurd.  In his defense, he argues that he’s not making any such implicit suggestion, but that it is simply a result of current doctrine on the death penalty, and that ”if a straightforward analysis of the consequences of legal doctrine leads to unpalatable conclusions, that is the result of the doctrine, not of those who explicate it.”  What Judge Boggs might not have considered is that this problem is not a result of a particular doctrine within capital punishment law, but the result of the entire death penalty scheme.

I put off writing anything about Crawford v. Washington for over a month, and now I can’t shut up about it…

We discussed the decision last week, here and here, and I came across some additional stuff.  I mentioned a couple of months ago the statute which permits the state to introduce drug tests without the testimony of the chemist who performed them.  Even when ”live” testimony for a test is given, it often happens that someone other than the person who actually performed the tests will testify, based upon the latter’s notes.  And it’s not uncommon for records of the calibration or other information concerning breathalyzers to come in under the business records exception to the hearsay rule.

Does any of this violate Crawford?  The 3rd District thought so last year, throwing out a conviction where the state sought to introduce DNA tests through someone other than the person who’d actually performed them.  The 6th District, though, came to a contrary conclusion, holding in a DWI case that documents establishing that the breathalyzer was properly calculated and that the officer performing the test was qualified to do so were properly admitted as business records.

The Ohio Supreme Court certified the conflict between the two cases, and will probably rule on it early next year.  Stay tuned.

There are 12 judges on the court of appeals here, which makes for a lot of combinations for the three-judge panels.  (I’d tell you exactly how many possible permutations there are, but the reason I went to law school is that they promised there wouldn’t be any math.)  One of the side benefits of that is that every now and then we’re treated to Dueling Panels.

This happened earlier this year with regard to the open and obvious doctrine, which I discussed last week.  Back in 2005, in Hamaoui v. Tops, the court reviewed the grant of a summary judgment to a grocery store.  The plaintiff customer had stepped on a wooden pallet to retrieve two cases of soda, and the pallet collapsed under him, due in no small part to his weighing 315 pounds.  (The dissent argued that the store could not have anticipated that someone would step on pallet, especially not ”someone of plaintiff’s bulk.”  Where’s the love?)  The majority reversed , holding that it was up to the jury to sort all this out.

Fast-forward to early this year, when another slip-and-fall hits the court, this time involving a bicyclist who’d fallen into a hole on a sidewalk.  He argued that under Hamouai, the “attendant circumstances” surrounding his fall made liabiity a question for the jury, but the court wasn’t buying, disposing of Hamouai by noting the “particularly persuasive” dissenting opinion.

What this shows, more than anything, is the difficulty the courts continue to have wrestling with the “open and obvious” doctrine.  As I mentioned last week, the concept is premised on the notion that a landowner has no duty to protect an invitee from hazards which are open and obvious.  There’s language in numerous Supreme Court cases that “duty” is a question to be determined by as a matter of law.  That’s fine for the crystal-clear cases, such as this one from a couple months’ back, where a customer trips over a parking barrier that’s sitting in plain sight.  But when the situation is a little murkier, at what point does a “question of law” become a question of fact for a jury?

One of the ways the courts have tried to deal with this is by holding that the “attendant circumstances” can make whether something’s open and obvious a jury question.  But these decisions wind up all over the place, too.  In Klauss v. Glassman, our court reversed a summary judgment where the plaintiff had tripped over a pallet left in the cross-aisle of a store; in this case, the 12th District upheld summary judgment where the plaintiff did virtually the same thing.  Some courts hold that lighting is an “attendant circumstnace,” others hold that it isn’t, because a person should be more careful in dimmer-lighted areas.

Slip and falls have never been any lawyer’s favorite, and the stricter application of the “open and obvious” doctrine in the past few years hasn’t helped.  If you’ve got one of these, the best thing to do is start with Judge Gallagher’s opinion in the Klauss case and work from there.

Well, this should be fun…

A couple of weeks ago Gov. Bob “Single Digit Approval Ratings” Taft signed a bill adding Sections 2152.202 and 2925.511 to the Revised Code, authorizing a court in a drug case (adult or juvenile) to order the offender to reimburse the state for the costs of the test which determined the substance was indeed narcotics. 

What’s going to be fun is that the statute requires the court to hold a hearing on the matter.  How’s the court going to determine what an individual test cost?  I gotta figure it’s going to need a whole lot of information, like the cost of the equipment that’s used in testing, how many tests they’re used for, how long they’ll last, what the salaries are for the people who do the tests…  and of course, you’re going to have subpoena a whole boatload of records on that.  I can just imagine a hearing like that lasting for days.  What’s more, the law specifies it’s only for drug abuse offenders, not for drug trafficking offenses, and I’m not sure what sense that makes. 

Actually, I’m not sure what sense any of this makes.  There’s been an apparent determination over the past few years that the cost of prosecuting offenders should be shifted to the offenders themselves.  While that has some superficial logic, there’s also a penny-wise/pound-foolish aspect to it as well.  Few attorneys, let alone defendants, realize that court costs can easily run into  thousands of dollars, and current law allows the state to automatically deduct any costs due from money paid to an inmate, or even received from his family.  I talked to one client this week, who told me that he gets $17 a month from working in the prison laundry.  That $17 doesn’t go into his commissary fund, it goes to the state to pay for the costs of prosecuting him.

The vast majority of the people who are sentenced to prison will eventually be released, and state policy seems to be to ensure that when they do, they’ll be broke.  Given the obstacles already faced by an ex-con, this doesn’t seem to be the most sensible way of reducing an already-high rate of recidivism.

Quick wrapup of some of the week’s highlights:

Supreme Court reverses 8th District, holds that conviction as aider and abettor proper even where principal offender not identified… 3rd District holds that even though identification procedure unduly suggestive, witness could still make in-court ID… 12th District rules guilty plea in rape case waives claims that witnesses were incompetent, also waives claim of counsel’s ineffectiveness unless defendant can show she would not have entered guilty plea but for counsel’s errors… 8th District holds that passing bad checks and theft aren’t allied offenses…

1st District reverses jury verdict awarding no damages for future pain and suffering where uncontested that plaintiff would have pain in future… 6th District affirms summary judgment in slip and fall on ice by postman delivering mail to defendant’s home; plaintiff claimed that defendant had slipped on same spot two hours earlier, so had “superior knowledge” of danger and thus a duty to warn, court wasn’t buying… 9th District says trial court can conduct de novo review of magistrate’s decision, overrule decision on an issue even if not requested by objecting party… 5th District rejects lawyer’s appeal from judgment of $6040 for DWI, lawyer had already been paid $6800, sought additional $14,000 (where do I get clients like that?)…

And if you’ve got time on your hands and want to sue a telemarketer, this case will tell you all you need to know about the Federal and state law on it.  On the other hand, if you get an unsolicited fax and are just itching to get even with the sender, this is where you want to look.