July 2006 Archives
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.
Is a 911 call admissible evidence? We talked about Crawford v. Washington earlier this week; that's the US Supreme Court decision which held that testimonial statements against an accused could only be be admitted if the defendant had an actual opportunity to cross-examine the declarant, at trial or otherwise. Left undecided by Crawford was exactly what constituted a "testimonial" statement. Is a 911 call "testimonial"? How about an excited utterance?
The first question was resolved somewhat last month in Davis v. Washington, where the Court laid down a test for determining whether a 911 call was testimonial. Basically, the statements are nontestimonial if their primary purpose is to obtain police assistance to meet an ongoing emergency. They're testimonial when there's no such emergency, and the primary purpose of the interrogation is to establish past events potentially relevant to later criminal prosecution.
Keep in mind that a single call can have elements of both. If, for example, a wife calls 911 to report a domestic violence, the husband leaves during the call, and the operator keeps the wife on the phone to get details of what happened, the latter part will probably fall under Crawford. (This isn't my scenario; it's one given in Davis.)
It's hard to argue that this doesn't represent somewhat of a retreat from Crawford's definition of what constitutes a testimonial statement: "statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial."
And it might not be unreasonable to suggest that Crawford isn't quite as sweeping as the defense bar initially thought. There are an awful lot of holes in it. If the witness testifies at trial, all the prior statements come in, even if the witness can't remember or won't testify about them; opportunity to cross-examine is all that's required. Keep in mind the opportunity doesn't need to arise at trial. For example, if there's a hearing on a temporary restraining order in a DV case, you're going to be stuck with the complainant's prior statements if she shows up at the hearing, even if she doesn't say a peep: you had the opportunity to cross-examine her. Statements by children of alleged abuse, to parents or medical personnel, are almost surely still going to come in under the hearsay exceptions for "excited utterances" or "statements made for purposes of medical diagnosis or treatment," since it seems fairly clear from Davis that only statements to police are going to be deemed "testimonial."
That's not to suggest that Crawford is meaningless, but if I had to guess, I'd say it's one of those decisions that five years down the road are going to whittled into something less than they initially seemed.
Remember all those fun nights down in the Flats? Whatever happened to that?
A reminder of what happened with that was served up by the 8th District last week in Kirchner v. Shooters, where the court affirmed summary judgment for the defendant in a case brought by the estate of a 20-year-old who'd gotten drunk, wandered out on the pier by Shooters with the intent to relieve himself, and wound up falling into the river and drowning. The court held that the "open and obvious" doctrine precluded recovery, and at first blush -- or even second or third -- it's hard to quibble with that conclusion: there's nothing much more obvious than the dangers of falling into a river.
The Ohio Supreme Court's 2003 decision in Armstrong v. Best Buy is usually cited as the source of the open and obvious doctrine, but the theory had been around a lot longer than that: courts had been systematically throwing out cases for decades on the basis that some danger or other was so blatant that the plaintiff couldn't recover for injuries caused by it. Then along came comparative negligence, and some courts started moving toward the idea the whole "open and obvious" thing was a question of fact that had to be hashed out by jurors, balancing the negligence of the landowner in creating the hazard against the negligence of the plaintiff in not apprehending it.
The Court in Armstrong put a stop to this, holding that the doctrine was based not on how much the plaintiff's negligence contributed to his injury, but on the concept of duty: a landowner has no duty to warn a person of dangers which are open and obvious, and since negligence requires a breach of duty, if there isn't one, there isn't any negligence.
That sounds nice in theory, but Kirchner reveals some of the problems with it in practice. The dangers of falling into a river might seem obvious, but not necessarily to a 20-year-old sloshed to the gills. (Kirchner's blood/alcohol level was three times the legal limit, a good part of it acquired at Shooter's, despite the fact he was underage.) Is it fair to absolve the defendant of a duty to warn the plaintiff of an "obvious" hazard when the defendant's own conduct might be partially responsible for the plaintiff not appreciating the obviousness of that hazard?
As I said, there's a fair amount of logic to the doctrine, whether one bases it on a duty-to-warn or on a comparative negligence theory. Its intellectual coherence is a bit frayed around the edges, though, because it essentially depends on the notion that whether a danger is "open and obvious" can always be determined as a matter of law. Next week, I'll take a look at some cases which show the flaws in that reasoning, and allow ways around the open and obvious doctrine.
I'd had a post on Sunday about the death penalty, and I wanted to follow up on a couple of points. First, the US Supreme Court in Kansas v. Marsh gives an idea of how the Court will be affected by the replacement of Sandra Day O'Connor by Sam Alito. Although O'Connor was a supporter of capital punishment -- she dissented last year from the decision to ban execution of those 18 or younger -- she'd become increasingly concerned about the procedural irregularities in applying it. Interestingly, if you read Souter's dissent in Marsh, it's laid out like a majority opinion. It might've been: the case was originally argued in December, when O'Connor was still on the Court, but had to be reargued in April, after Alito took the bench. Alito, of course, was part of the 5-man majority in Marsh.
While writing the post on Sunday, I came across a couple of other interesting pieces. I'd thought that one of the reasons for the decline in the number of death penalties imposed was the creation of the "life without parole" penalty as an alternative. The latter has been championed by capital punishment opponents for years, and forty-five states have now adopted it.
As this article in the Harvard Law Review points out, though, the effect hasn't been the intended one. Life without parole statutes have had a negligible impact on imposition of the death penalty -- the authors study death penalty rates in states with and without life without parole, and find that the overall decline in capital punishment has little to do with the availability of that penalty. On the other hand, the number of defendants sentenced to life without parole has increased dramatically, and many of them never would have even been eligible for capital punishment.
The net result of all this is that non-capital defendants are serving longer sentences, while the impact on death sentences is marginal, an effect that surely was not intended.
Another viewpoint on how the death penalty distorts the criminal justice system is offered in this article. It's a more general opinion piece than the Harvard article, but the author makes some interesting points. He notes that in capital cases, unlike ordinary criminal cases, the appeals process delays imposition of punishment. Because of the high visibility of death penalty cases, efforts are often made to shorten the appeal process and impose more stringent qualifications on post-conviction and habeas corpus remedies. The result, though, is that restrictions on capital cases work their way throughout the entire criminal justice system: a contraction in the rights of the capital defendant also contracts those of someone convicted of rape, burglary, and drug possession.
One can certainly make moral and logical arguments for and against the death penalty. But given the complete absence of evidence that it has any deterrent effect, and the arbitrary nature of its imposition -- a twenty-year study of Maryland showed that juries imposed it on less than 6% of those eligible for it -- the distorting effects it has on the rest of the criminal justice system makes it hard to conclude that the game is worth the candle.
An old client comes in to you with a fender bender and, against your better judgment, you take it in. Sure enough, you find that the other driver's insurance company is particularly nasty -- no names, but let's say theirs rhymes with "balls weight" -- and you're forced to try a case with a whopping $1700 in medical specials. Sure, the jury gives you $6200, which is $3800 more than you were offered, but you're not satisfied: in the spirit of "it's the principle of the thing," you file a motion for prejudgment interest.
And that perseverance puts an extra 600 bucks in your pocket -- well, $200 in yours, $400 in your client's -- because not only does the judge award you prejudgment interest, the court of appeals affirmed it a few weeks back in Sandifer v. Tighe. The result isn't that surprising; the defendant kinda forgot to file the transcript of the hearing the trial court conducted on the issue. For those of you unversed in appellate practice, your chances of showing that the lower court erred decline dramatically when you don't let the court of appeals in on what happened in the lower court.
The temptation to write off the result in Sandifer on that basis should be resisted, however, because the Court came to pretty much the exact same result five months ago in Szitas v. Hill (the decision's now been reported at 165 OApp3d 439), holding that plaintiff was entitled to prejudgment interest where the specials had been $2200, the insurance company offered $3400, and the jury came back with $7500.
What's particularly noteworthy about Szitas is that the trial court had declined to award interest. The appellate court's decision, then, was based on "abuse of discretion," which, loosely translated, means "we'll uphold the decision unless there was substantial evidence that the judge was foaming at the mouth when he rendered it." For that reason, the trial court's decision is almost invariably affirmed. But not here.
It's tempting to think that Szitas and Sandifer represent a trend, and in truth, there seems to be more of a tendency in the past couple of years for our court to affirm awards of prejudgment interest, as they did here, here, and here. And there's some good arguments raised in them. Last year in Meehan v. Johns, for example, the court held prejudgment interest was appropriate where the defendant didn't concede the plaintiff's injury, but failed to obtain or present expert testimony refuting it. This could put you in the driver's seat -- no pun intended -- if the insurance company doesn't get an "independent" medical examination but still contests the nature of the injury, which it almost invariably does.
Still, don't get carried away. There are plenty of decisions which uphold denials of prejudgment interest, such as Ready v. Barfield, decided only a month before Sandifer. The court in Ready decided that the plaintiff wasn't even entitled to a hearing on prejudgment interest, despite an offer of $3600 and a jury award of almost $10,000. Then again, the plaintiffs had made a demand of $32,000, based largely on $15,000 in lost wages (as compared to an ER bill, $760 for physical therapy, and another $143 for prescriptions), so maybe the real conclusion in Ready was that if anybody wasn't evaluating the case realistically, it was the plaintiff.
The bottom line? It depends on the judge, and it depends on the panel in the court of appeals. Not that that's unusual, but probably more so here than in other situations.
There probably has been no case more heralded by the criminal defense bar since the demise of the Warren Court than Crawford v. Washington. Before Crawford, hearsay in criminal trials was governed by Ohio v. Roberts, which held that the defendant's right to confrontation was satisfied if an out-of-court statement fell within a "well-recognized" hearsay exception or met "particularized guarantees of reliability." That was all washed away by Crawford, where the Court unanimously declared that the only criterion permissible for the admission of testimonial statements was the one demanded by the Sixth Amendment: actual confrontation.
A number of Ohio courts, however, have not exactly been rigorous in applying Crawford, especially since it left undecided exactly what constituted "testimonial statements." Typical is this 9th District decision which holds that an "excited utterance" is non-testimonial because it falls within an exception to the hearsay rule. This makes no sense: if you're going to hold that only statements which aren't hearsay are "testimonial," then you're back to Roberts, and Crawford is a nullity. Other courts have employed the prosecutor's Best Friend, Harmless Error, to avoid Crawford's consequences, sometimes not even applying the standard for constitutional error; one court fluffed off a Crawford problem by holding that the error didn't affect a "substantial right," leaving unanswered how you get any more substantial than the 6th Amendment.
Fortunately, our court here in Cuyahoga County has done a fairly good job of consistently applying Crawford, and there are a number of decisions you might want to have available if you're going into trial and you know the situation's going to crop up. You can start with this decision, which came out only a few months after Crawford was handed down, and struck down the reading of a co-defendant's confession. This case reversed a conviction where the police officer testified what an accomplice had told him, and in State v. Iverson the court ruled that the testimony of another police officer and a technician were barred by Crawford.
That last decision is particularly handy for another reason. Remember I mentioned that the Supreme Court left undecided exactly what constituted a "testimonial statement"? The lower courts have been wrestling with that since, and probably the most defense-friendly definition was laid out by the 6th Circuit in US v. Cromer, 389 F3d 662: "any statement made in circumstances in which a reasonable person would realize that it likely would be used in investigation or prosecution of a crime." And that's the test that our court approved in Iverson.
I'll have some additional stuff on this in the next few weeks, including the application of Crawford to 911 calls and to statements by alleged child abuse victims.
Last Sunday's piece in the Plain Dealer about the three -- or four or five or six or seven -- men who may have been wrongfully put on death row in Ohio because of the misconduct of a former county prosecutor came as an interesting juxtaposition with the US Supreme Court's latest foray into death penalty jurisprudence. A few weeks back, in Kansas v. Marsh, the Court upheld a Kansas statute which allowed the defendant to be executed if the evidence of mitigating and aggravating factors was equal.
The decision wasn't wholly unexpected; after all, the Court has previously held that there's nothing wrong with imposing upon the defendant the burden of proving that the mitigating factors outweigh the aggravating circumstances, creating the interesting situation where I can't recover for a fender-bender in small claims court if I can't prove my case, but the state can kill someone unless he proves that it shouldn't. What was more interesting than the result was the dueling opinions, Souter dissenting and Scalia concurring. Souter argued that the "repeated exonerations of convicts under death sentences" should force a re-examination of what the 8th Amendment could tolerate in terms of capital punishment. Scalia was having none of it; those exonerations, rather than being an indictment of the system, proved instead that it worked: the system does eventually weed out the innocent from the guilty, however belatedly.
This is a popular litany among supporters of capital punishment, a rejoinder to be expected in the face of evidence that scores of people have been wrongfully sentenced to death: the Death Penalty Innocence Project now lists 123 people who were convicted of capital crimes and subsequently exonerated. This argument has more than a tinge of hypocrisy to it, because those same supporters regularly bemoan the lengthy appeals process available to those on death row. In this case, though, the delay of "justice" is its saving grace: of the 39 people freed from death row because they'd been wrongfully convicted, 29 had been there more than ten years.
In this light, what was more interesting about the Plain Dealer article than its discussion of the individual cases was its brief history of capital punishment in Ohio since its restoration in 1980, especially in Cuyahoga County. The article noted that former Cuyahoga County Prosecutor John T. Corrigan was a strong advocate of capital punishment, and his enthusiasm for it resulted in one out of six residents of the state's death row coming out of this County.
But that was then, this is now: the article went on to note that although the number of capital prosecutions has remained steady, the number of death sentences has plummeted in this county. That is hardly a phenomenon confined to this area; the number of death penalties handed down by American juries has declined to its lowest level since capital punishment was reinstated thirty years ago, and has dropped by almost two-thirds in the past decade.
There are a number of reasons for this, like the availability of alternative sentences like life imprisonment without parole, but a major one appears to be a public increasingly sharing Souter's concerns about a system "that fails to deliver the fair, consistent, and reliable sentences of death required by the Constitution."
Those words are not from Souter, though, but from Justice Harry Blackmun in 1994. Having tried for two decades "to develop procedural and substantive rules that would lend more than the mere appearance of fairness to the death penalty endeavor," Blackmun concluded that those endeavors were in vain, and announced that "from this day forward, I no longer shall tinker with the machinery of death." It may be that the American people are coming around to the same view.
Let's see what's happened in the past week or so...
9th District affirms murder conviction where victim died 19 months after beating by defendant... 2nd District vacates conviction based on no contest plea to misdemeanor where no "explanation of circumstances" given, as required by RC 2937.07, even though police report in file and defendant had agreed to finding of guilty; under law, defendant entitled to discharge... Good discussion by 12th District on good faith exception to the warrant requirement... 9th District holds that determination that verdict was not against manifest weight of evidence automatically means that evidence was sufficient...
8th District holds court has no authority to modify visitation in a civil protection order, although if divorce filed, that court can modify it... 11th District holds that proof of knee strain in work comp case does not require expert testimony... 8th District holds that court not required to find change of circumstances to modify shared parenting plan; "best interest of child" test is to be employed... 9th District reverses dismissal of complaint for failure to state a claim, holding that promissory estoppel remains an exception to employment at will doctrine.
The Ohio Supreme Court's decision on Wednesday in State v. Farris could have some major long-term ramifications for search and seizure law. The facts of the case are simple: Farris was stopped by a police officer who, smelling marijuana in the car, took Farris back to the police cruiser and, without Mirandizing him, elicited his admission that some of his friends in the car had been smoking the evil weed, and that he had a pipe in a bag in the trunk. The officer then read Farris his Miranda rights, got him to make the same admissions, and searched the car and the trunk, seizing the pipe.
What happens after that isn't quite as simple. The Court had to answer several questions:
Can the police use the post-Miranda statements? Obviously, they can't use the first statements, because the Miranda rights weren't given. In keeping with previous US Supreme Court decisions, the Court held that the second set of statements -- the ones given after the defendant was Mirandized, couldn't be used either, because there wasn't a sufficient break between the two.
Could the evidence the police officer found be used, despite the Miranda violation? Normally, yes; the US Supreme Court has held that a search based on an interrogation done in violation of Miranda is admissible. Why wouldn't it be a "fruit of the poisonous tree"? Because a violation of Miranda isn't a constitutional violation. Miranda isn't required by the Constitution, it's simply a rule the Court has adopted to effectuate the Self-Incrimination Clause, much like the exclusionary rule was adopted to effectuate the Fourth Amendment.
But this is where it gets interesting. Although the Federal courts have consistently held that a violation of Miranda doesn't prohibit using the physical evidence found as a result of the violation, the Court in Farris finds that using the physical evidence is prohibited under the Ohio constitution's self-incrimination clause.
Does probable cause to search the car give probable cause to search the trunk? Nope. The smell of marijuana gave the officer probable cause to search the car, but that doesn't extend to the trunk.
The big news is the second point. As I mentioned a month ago, after the recent US Supreme Court case holding that the exclusionary rule would no longer be applied in "no-knock" cases, it's not hard to envision the possibility of the rule being abolished altogether. That would leave the Ohio constitution as the only basis for exclusion. I'll talk about the legal arguments on that next week, but in the meantime, if you're doing criminal defense work, make sure you start asserting state constitutional grounds, as well as Federal ones, in your motions.
You've sued three defendants, and the trial court's granted one of them a summary judgment. Later on, you voluntarily dismiss the case under Rule 41(A)(1). What happens to the summary judgment?
The Supreme Court dodged a case this week which would have ended some confusion on the matter. A number of courts, including ours, have held that unless the court includes Rule 54(B) language in the order granting summary judgment, making it a final appealable order, the order becomes a nullity when the voluntary dismissal is filed. What's more, the plaintiff can then refile, and the previous summary judgment isn't res judicata. (It works the other way, too, as this case shows; if the plaintiff dismisses and refiles, a denial of summary judgment in the lawsuit's previous incarnation doesn't preclude the court from granting it the second time around.)
But here's where it gets weird: that applies only if the dismissal entry specifies that you're dismissing the whole case. If you specify that you're dismissing only the remaining defendants -- the ones who weren't granted summary judgment -- then, according to the Supreme Court in this case, the summary judgment against the other defendant becomes final, and you can appeal that. In fact, unless you want to get stuck with it, you have to.
Last year, in Fairchilds v. Miami Valley Hospital, the 2nd District confronted the first situation. The plaintiffs had sued a hospital and a doctor, the doctor was granted summary judgment, the plaintiffs dismissed the entire action, and then refiled against both defendants. The trial court entered an order making the summary judgment in the first case a final order, then granted summary judgment to the doctor in the second case on res judicata grounds. The appellate court reversed on both, and the Supreme Court granted an appeal.
And then last week decided they shouldn't have done that, and dismissed the appeal as "improvidently granted." What's interesting is that Justice Resnick wanted to do that three months ago, and apparently in the interim succeeded in convincing four other justices to do it now.
The moral of this story, if there is one -- besides, "Jeez, is that weird or what?" -- is be careful what you do with a case where one party has been granted summary judgment. In most cases, it's not going to matter, since the judge on a refiled case is automatically the same one who had it before, and if they granted summary judgment before, they'll do it again. But if something has happened to that judge in the interim -- think "election results" -- you might get a whole 'nuther bite of the apple.
I'm on the road today, so we're going to pull one from the archives, about a couple months back...
When the prosecutor reads me the police report at the first pretrial, I'm always pleasantly surprised when the cops' version bears at least a vague resemblance to what my client has told me. So I'm pleasantly surprised: according to the report, the police had seen him standing near a bus stop with an open container of beer, had approached him to give him a citation, patted him down, and felt a hard cylindrical object in his pocket, which of course turned out to be a crack pipe. Oh, sure, the police didn't corroborate his claim that the bottle had been merely sitting next to him on the bench, rather than in his hand, and there was no mention of the two women who he said were there with him, one of whom had been kind enough to furnish the jacket in which the crack pipe was found. But those niggling details wouldn't be a problem. I told the prosecutor that I'd be filing a motion to suppress. He laughed at me. "The guy had an open container!" Another defense attorney at the table pointed out that the police only give a citation for an open container, but shrugged in agreement with the prosecutor's claim that that was good enough to justify a stop and frisk.
A lot of police officers, and not a few prosecuting and defense attorneys, believe that Terry v. Ohio means that if you can stop 'em, you can frisk 'em. Not so. The courts have rather consistently observed that each of the intrusions permitted by Terry - the stop, and the protective search for weapons - requires an independent basis: even where a reasonable suspicion of criminal activity exists, a frisk is not permitted unless the officer can point to evidence which would lead a "reasonably prudent police officer" to believe that the suspects he's encountered are armed and dangerous. For example, in State v. Scaggs, the court agreed with the trial court's assessment that while a suspicion of criminal activity arose from defendant's crouching down behind a car, there was nothing to justify a frisk for weapons.
To be sure, it's not common for the courts to split the baby and find that reasonable suspicion existed for a stop, but not for a frisk. That's due in large part to understandable deference to concerns for safety of police officers, a concern highlighted by Judge Corrigan's dissent in State v. Jones, the case I relied upon in my hearing. In Jones, the police observed the defendants flagging down cars in the proverbial "high crime area," an activity that, as every criminal defense lawyer knows, is "consistent with drug activity." The officers approached the defendants and immediately patted them down. The majority agreed that while the officers had a sufficient basis for a stop, they didn't have any basis for a frisk.
At first blush, it appears that Judge Corrigan gets the better of the argument. He's correct in his observation that prior case law holds that, because of the frequent link between drugs and weapons, a frisk is "virtually automatic" in cases where drug activity is suspected.
On the other hand, there's some reason to question the "automatic" nature of that link; as the majority points out, the officer testified that of the couple of hundred arrests he had made for drug dealing, only "five or six" turned up weapons. What's more, it could be argued that the majority was too quick in conceding the reasonableness of the stop. The officers had seen nothing more than the defendants waving at vehicles - no cars stopping, no exchanges - and they didn't do anything upon the approach of the officers which corroborated any indication of criminal activity. While there was nothing to keep the police from engaging in a "consensual encounter," contending that the circumstances gave them sufficient grounds for a stop might arguably be a stretch. (State v. Scott gives an excellent explanation of the difference between a consensual encounter, a stop, and an arrest.)
There's certainly a valid argument in favor of deference to the police on this score: they're the ones putting their lives on the line. On the other hand, a frisk poses a substantially greater intrusion upon privacy than even a vehicular stop. (If you don't believe me, imagine your neighbors driving by while you're sitting in your car with a police black-and-white with its lights flashing parked behind you. Now imagine your neighbors driving by while the police have you spread-eagled on your car, patting you down.) Given that a recent study of the NYPD showed that of every nine stop-and-frisks the police there made, only one resulted in an arrest, there's a serious question of whether the societal benefit of giving the police greater leeway in this regard is worth the costs.
One of the guys in the office recently had a potential malpractice case come in, except that the alleged malpractice happened more than four years ago. That's a problem; RC 2305.113(C) provides a four-year statute of repose for med-mal actions. A statute of repose is similar to a statute of limitations, but works slightly differently: the latter runs from the time that the cause of action accrues, while the former runs from the date of occurrence, and is an absolute bar.
For example, let's say you get heart surgery in 1998. You don't have any problems until 2003, when they have to cut you open again, at which time your new doctor tells you that your old doctor screwed up. The statute of limitations isn't a bar, because the cause of action didn't "accrue" until you were told (or had reason to believe) that the first doctor committed malpractice. But the statute of repose prohibits the action, because it provides that an action can't be brought more than four years "after the occurrence of the act or omission constituting the alleged basis" for the malpractice claim. Which, of course, is the 1998 surgery.
There's no case law on the statute, because it was only enacted in 2003, and wouldn't apply to any cases prior to that time. It's flatly unconstitutional, though, at least under current Supreme Court cases. Back in 1999, in State ex rel. Ohio Academy of Trial Lawyers v. Sheward, the Supreme Court tossed out the tort reforms the Ohio legislature had passed in 1996, including a statute of repose for medical malpractice cases. Since then, of course, the legislature's passed a whole raft of tort reform legislation, and given the changes in the composition of the Supreme Court over the past several years, the fate of that legislation is uncertain.
I think it's unlikely that the statute of repose will survive, though, because the argument against it is pretty good. Even before Sheward, the Court had struck down the architectural statute of repose of 10 years in Brennaman v. RMI, on the grounds that it violated the Ohio Constitution's right to remedy provision, because it could deny a person a remedy before they were even aware that they had been wronged.
I'm not going to get into the pros and cons of tort reform. You can make some decent arguments for a lengthy statute of repose in certain instances, but four years for medical malpractice is simply brutal. It'll probably be another three years before we get a definitive answer on this one, though.
Another good decision on arbitration comes out of our Court in Schwartz v. Alltel Corp., following up on one I'd mentioned a couple months ago. In this one, the plaintiff had responded to a cell phone service ad by Alltel promising "Unlimited Anytime Minutes only $49.99 for life." He went to one of the little kiosks that clutter our malls and signed a contract which indeed provided for "$49.95 unlimited local air time for life as long as customer remains on rate plan with Alltel."
Apparently, Alltel was working from a dictionary which defined "for life" as meaning "four months," because that's the point at which the plaintiff received a letter from them, announcing that his rate would be going up ten bucks a month because of the "increased cost of doing business." The plaintiff decided to increase their costs of doing business even more by suing them, at which point Alltel pointed to the language in 3 1/2 point type on the back of the contract stating that all disputes had to be submitted to arbitration.
The trial court didn't buy it, and neither did the court of appeals. Writing for a unanimous court, Judge Kilbane (with Judges Sweeney and Karpinski concurring) found the agreement both substantively and procedurally unconscionable. The court found substantive unconscionability because the arbitration provision prohibited class actions and and awards of attorney fees, both of which are allowed under Ohio's Consumer Sales Practices Act.
The disposition of the procedural unconscionability factor was even more surprising. In Olah, decided less than five months ago, the plaintiffs had argued that they were rushed into signing the agreement, and that it was never explained to them. The court held that because "we do not know plaintiffs' age, education, intelligence, business acumen, etc.," a remand to the trial court for determination of procedural unconscionability was in order.
Here, though, the plaintiff had presented no evidence of procedural unconscionability -- nothing about his "education" or "business acumen." The court nonetheless found the provision procedurally unconscionable, because it was adhesionary in nature, the arbitration provision was in small print at the back of the document, there was a gross disparity in bargaining power and familiarity with such provisions between the consumer and a "multi-billion dollar corporation," and "Schwartz was not represented by counsel when he signed the agreement."
I have a real hard time reading Schwartz and trying to imagine a scenario in which an arbitration provision will be upheld in an ordinary consumer transaction. Keep in mind that while you don't have to prove both substantive and procedural unconscionability, you have to provide some quantum of evidence on both points. That quantum isn't specified in any of the case law -- in fact, it comes from a treatise on consumer law -- but it seems safe to say that as long as you satisfy the court on one and produce some evidence on the other, you'll satisfy that burden.
And Schwartz's holding makes it almost impossible not to do that. An arbitration provision rarely provides for attorney fee awards, and the very nature of arbitration makes them incapable of handling class actions, yet the failure to provide those two automatically makes such a provision substantively unconscionable. Unless you're Warren Buffett or take a lawyer along with you to sign the contract, procedural unconscionability is going to be more or less inferred from the disparity in bargaining power between corporation and consumer, and the adhesionary nature of the contract.
That's about as pro-consumer as it gets.
I got to the office at my usual time, about six in the morning, and was working on my second cup of coffee when Phil ambled in about a half hour later. He got his own cup, then walked into my office and plopped himself into the chair across the desk from me. "Well, the Indians sucked," he said.
I typed out a last line. "Why the past tense?"
"Yeah," he chuckled, taking a tentative sip of his coffee. "Saw Judge Manos died." Another sip. "Jeez, he was a tough old bird. Remember the first time I had something with him, my first case in Federal court, asked another lawyer what Manos was like, guy says, 'Well, kid, let me put it this way. If I ordered twenty tons of sonsofbitches, and you sent me John Manos on a flatcar, I'd call it substantial performance.'" He'd decided the coffee was too hot yet. "Didn't care for him much."
"The other lawyer?"
"No, Manos. Thought he was a bully."
"Oh, he was tough, but he was fair."
"You think so?"
I leaned back in the chair. "A while back I had a case, home contractor who was doing the routine down in the ghetto, going to door to door, selling home improvement jobs, you know, $20,000 for a new kitchen in a house that's worth maybe thirty. He'd get them to sign mortgages by telling them he'd add a bit to it so he could put a couple grand in their pockets. Of course, he had people sign the disclosure forms in blank, so they had no idea what interest they were being charged, what their payments were. Then the contractor would sell the mortgages to an outfit in Texas, get eighty cents on the dollar. Of course, the people couldn't make the payments, so the mortgage company would foreclose.
"Anyway, some lawyer, a black kid, just out of law school, working out of his home in the Heights, got about fifteen of the cases together, and sued the contractor and the company he was selling the paper to. The contractor hired a lawyer I used to be friends with, and he brought me in on the case to do the research, pleadings, that sort of stuff.
"The case was assigned to Manos, and before the pretrial my friend's talking about how Manos is going to tear this young lawyer a new one, scare the hell out of him, maybe get him to dismiss. Worst case scenario, pressure him to settle the case on the cheap.
"So we go to the pretrial, and after Manos talks to both sides for a couple of minutes, he asks the plaintiff's lawyer to excuse himself. Then he turns to us and says, 'This is what your clients are going to do. They're going to cancel each of the mortgages. They're going to pay each plaintiff fifteen thousand dollars. And they're going to pay thirty thousand dollars for plaintiff's attorney fees.' He stopped and looked us dead in the eye. 'And if they don't do that, I'm going to refer this case over to the US Attorney for prosecution.'"
Phil grinned. "Guess you settled the case, huh?"
I smiled. "I guess we did."
"Pretty good payday for the lawyer and his clients."
"Yeah, but it was a fair result. Know what I mean?"
He nodded. The coffee had cooled; he took a couple more sips, then drained the cup. "That story makes me feel better about Manos," he said as he stood up.
"Hey, Phil," I called to him as he started to walk out. "What's the difference between God and a Federal judge?"
He paused in the doorway. "Don't know."
"God doesn't think he's a Federal judge."
Phil laughed. He left, and I went back to work.
Let's see what happened during the week...
5th District affirms grant of grandparent visitation over objection of mother, good discussion of criteria court should use... 8th district holds GAL fees ordered as child support not dischargeable in bankruptcy... 10th district affirms grant of summary judgment, holding that absence of handrail on one side of steps in bar was "open and obvious," despite dim lighting... 1st District reverses defense verdict in medical malpractice case for improper conduct of defense counsel, marking fourth time that this court has reversed this lawyer on this basis... 2nd District reverses summary judgment in workers comp case where plaintiff injured crossing street to employee parking lot; extended discussion of "coming and going" rule...
12th District holds that defendant's speedy trial rights violated by, among other things, court taking 252 days to rule on motion to reconsider its ruling on motion to suppress; case discusses just about every possible aspect of speedy trial... Good discussion by 11th District of when court should sua sponte consider incompetency of defendant... 2nd District reverses court's refusal to permit defendant to withdraw plea to non-support, holding that court should have considered defendant's argument that he lacked ability to pay, since that was a defense to charge... 6th District joins six other districts in holding that Gay Marriage Amendment doesn't bar prosecution of cohabitants for domestic violence, something I discussed a while back...
And, if you've thought it might be fun to be an appellate court judge, take a look at the assignment of error by the pro se defendant in this case:
The Trial Court Erred in Granting Summary Judgement ; the State Has Pleaded Gulity at the Appellate Court Level, Reversed and Remanded Case No. 83572, 2004 Ohio 2696. In the Court of Claims the State Denies All Issues Catagorically , on October 19, 2005 Pre-screening Entry the Court Sua Sponte Amends the Caption Joseph Hardy Vs. Belmont Correctional Institution, Et. Al., under 2743.02 of the Revised Code Section 2743, Where the State Has Pleaded Guilty to Double-jeopardy Reversed by the Appellate Court the Plaintiff Has Met the Burden of Proof, the Court Errs after These Matters Had Been Set for Trial to Entertain Summary Judgement Without Journal Entry Without Leave Civ. Rule .5704 Set Forth in Loc. Rule .2101. Counsel of Record Was Not Jana M. Brown Rule .1802, the Court Failed to Qualify the Expert Witness after the Expiration Date October 24, 2005 Civ. Rule .56(e) Summary Judgment Would Be a Direct Conflict There must Be a Settlement Minimum a Fair Trial. Thereby Violating the Plaintiff Rights of Equal Protection and Due Process as Guaranteed by the Fifth and Fourteenth Amendment, Section 1 § 2 and § 10 of the Ohio Constitution Where the State Had Plead Gulity to Double Jeopardy Codicil (In Pari Delicto) a Judgement Which Includes Usurious Interest Is Erroneous § 1343.04.
The court observed that "appellant's brief is basically unintelligible."
By the way, that wasn't the only assignment of error.
One of the guys in the office was in trial this week, and encountered what I call the "police officer exception" to the hearsay rule. You know how it works:
Q. Officer, what did you do when you arrived at the scene?
A. The neighbor, Mrs. Shack, came to me and told me --
DEFENSE COUNSEL: Objection.
THE COURT: Sustained. Rephrase the question.
Q. What did you learn as a result of your interrogation of Ms. Shack, officer?
A. I learned that the that she had been present during the altercation between the victim and the defendant, and that --
DEFENSE COUNSEL: Objection, your Honor!
THE COURT: He's not saying what she said. He's saying what he learned. Overruled. Proceed.
A. I learned from Mrs. Shack that the defendant had grabbed the victim and thrown her down.
It's not always that flagrant, but an unfortunately surprising number of judges have no problems with police officers testifying what they "learned as a result of their investigation," even when what they "learned" is obviously hearsay.
So there are a few cases you might want to carry in your trial folder. One is a case out of the 8th District from over 50 years ago, City of Cleveland v. Coleman, 72 Ohio Law Abs. 94, a hit-and-run prosecution where the court held that a police officer's testimony that he "learned" of the defendant's license plate was inadmissible hearsay. Of much more recent vintage is Bryans v. English Nanny and Governess School, Inc., 117 Ohio App.3d 303; in that one, a discrimination suit plaintiff's testimony that she learned from other students that employment positions were available to them, but not to her, was held inadmissible.
Another good case is one from the 10th District in 1990, State v. Cassidy, 1990 WL 20083, which has a real nice quote:
Although Officer Morris did not relate specifically what Peer told him, the effect was the same. In his testimony, Morris stated that as a result of talking with Peer, he arrested defendant. The logical conclusion of this testimony is that Peer told Morris that defendant was somehow involved in the murder of her husband. The result was that in an 'indirect' fashion, hearsay evidence was admitted.
You might also acquaint the trial judge with the Crawford rule on hearsay -- and I keep meaning to do a post on that -- which means that testimony along these lines will be a violation of the Confrontation Clause, and then you get into that nasty stuff about the state having to show that the error's harmless beyond a reasonable doubt. Should do the trick.
By the way, in case anyone thinks I'm exaggerating the problem, the testimony I had above wasn't from my friend's trial. It's taken from an actual transcript in an appeal I handled a few years back. It's the one I talked about earlier, where I got punked on the issue of severance of trial. I raised the hearsay argument, too, but this was pre-Crawford, so the court blew me away on that one by holding it was harmless error.
I think they did put something in the opinion about me having worn a nice tie for oral argument, so that made me feel better.
Wanted to spend the day following up on some stuff from earlier. Last week I had a post about uncounseled misdemeanor convictions as an enhancement for a felony. (Three prior DWI's within 6 years make the fourth a felony, for example.) A reader suggested that the 11th District decision in State v. Brooke is a great case for defense counsel to have, and he's right. Brooke basically holds that before any uncounseled misdemeanor conviction can be used to enhance a felony offense, the state must show that it meets the requirements of the criminal rules, meaning it has to be recorded. What's more,
a knowing, intelligent and voluntary waiver of the right to counsel should not be inferred unless the record affirmatively demonstrates that the defendant understood the nature of the charges, the possible defenses and the evidence the state would present.
It's a great case, but a couple of cautionary points. First, it's not the law in this district; as I pointed out, the 8th District has held that the state does not have to show that a waiver of counsel in the prior conviction was done in compliance with the criminal rules. Second, Brooke's up on appeal to the Supreme Court, and I think it's going to be reversed. You can make good arguments for it, but as a practical matter, I don't think the Supreme Court's going to allow felony DWI and domestic violence convictions to hinge on whether the transcript of the municipal court's misdemeanor plea hearing is still available, especially now that the DWI statute has a twenty-year "lookback" provision.
While doing the research on this, though, I found this case out of the 11th District holding that for the waiver in a misdemeanor domestic violence case to be valid, the defendant has to have been advised that a future DV charge would be a felony. That could be helpful.
The other issue I wanted to follow up on was another post from last week, about dismissal for failure to get service upon a defendant. I'd mentioned that the 8th District's case of Anderson v. Borg-Warner held that a dismissal under Civ.R. 3(A) was a dismissal on the merits, and barred refiling under the savings statute, RC 2305.19.
I don't agree with Anderson's logic, because it creates a possibility of two similar situations giving rise to two completely different outcomes. Here's how: say you have two plaintiffs, both of whom have failed to get service on the defendant within the year that Rule 3(A) allows them. The defendant in the first case filed a motion to dismiss, and the motion is granted. Under Anderson, the dismissal is with prejudice, and that's the end of the case.
The second defendant also files a motion to dismiss. But the second plaintiff, without waiting for the court to rule on it, voluntarily dismisses the action. As soon as that's filed, the court loses jurisdiction to rule on the defendant's motion to dismiss.
What's more, the second plaintiff can then refile under the savings clause. The savings clause gives you a year to refile if (a) the dismissal was otherwise than upon the merits, which a voluntary dismissal is, and (b) you commenced or attempted to commence the action. While Anderson correctly holds that an action isn't commenced if you don't get service within a year of filing, you've certainly attempted to commence the action as long as you've filed it and tried to get service.
Thus, the effect of Anderson can be avoided by the simple expedient of voluntarily dismissing the case when the defendant files the motion to dismiss for failure to get service within a year, and then refile. As I said in the original note, your safest course is to dismiss before the year is up, but if you get stuck, you've got a good argument that voluntary dismissal is a way out.
You've got a client charged with two counts of robbery, a kidnapping, and a forgery thrown in for good measure. You work out a sweetheart deal on the day of trial -- a felony four robbery and a misdemeanor forgery. Your client balks, claiming he's innocent, but you take him back in the holding cell and teach him some basic arithmetic, namely, that ten or fifteen years is a lot longer than six months, and it's even longer when you have to shower with a bunch of guys who have more tattoos than teeth.
He comes to his senses, you go back out in front of the judge, and things are going swimmingly until your client pulls the same "but I didn't do it" routine. At which point the judge announces, "I don't accept pleas from people that don't think they did anything wrong," refuses to accept the plea, and calls in the jury. The story has a happy ending, because you get to tell your client, "I told you so": the jury hangs on the kidnapping, but convicts on the other counts, and your client becomes a guest of Casa Taft for the next several years.
Well, okay, it wasn't such a happy ending for him.
But it did become one in the court of appeals, because the 10th District reverses the conviction, finding that the trial court abused its discretion in not accepting the plea. Under North Carolina v. Alford, a court can accept a guilty plea from a defendant despite a protestation of innocence; Alford reasoned, correctly, that sometimes even an innocent man can rationally decide to plead guilty to a crime in order to minimize the penalty he might receive. Alford says that the court isn't required to accept the plea -- in fact, it's not required to accept any plea -- but the appellate lawyer here made the excellent argument that the court abused its discretion by refusing to exercise it -- in other words, by imposing a blanket rule of not accepting Alford pleas.
There are a number of cases which have upheld the trial court's refusal to accept an Alford plea, including one from our county -- State v. Jones, 1994 Ohio App. LEXIS 590. Those cases, however, don't engage in the analysis of abusing discretion by refusing to exercise it, so the 10th District's decision offers an opportunity for some creative lawyering.
I wasn't going to do a post today, but today is a particularly good time to discuss last week's Supreme Court decision in Hamdan v. Rumsfeld.
One of the consequences of 9/11 is the emergence over the past few years the "unitary executive" theory, which essentially holds that the president has sole authority over foreign policy and, through his role as commander-in-chief of the military, the conduct of war, and that neither Congress nor the courts can interfere with that power. The Bush administration has been particularly zealous in pursuing that theory: under it, President Bush has insisted that he has the sole unfettered right to determine who is an enemy combatant, that he can engage in warrantless wiretapping regardless of the provisions of the Foreign Intelligence Surveillance Act, and that through "signing statements" made at the time he approves Congessional legislation, he can carve out exceptions for when he can ignore that legislation.
To be sure, Bush is not the first president to claim extraordinary wartime powers. Lincoln suspended habeas corpus, Wilson curtailed dissent in ways we'd find shocking today, and FDR interned 120,000 Japanese-Americans. In fact, on the issue raised by Hamdan -- the president's right to create military tribunals -- Bush is a piker compared to Roosevelt. When eight Nazi saboteurs who'd landed here by submarine were captured in 1942, a military tribunal FDR established by executive fiat tried them within a few weeks of their arrest and executed six of them five days after their convictions.
The difficulty with those comparisons, though, is in the nature of the war. Lincoln, Wilson, and Roosevelt were fighting against clearly defined enemies, and with clearly defined victory conditions. Here, we're fighting a war against a vaguely defined enemy (terrorism? al Qaeda? radical Islamic fundamentalism?) and the duration of that war promises to be no more finite than the or the war on drugs. It's one thing to round up spies from a country we've declared war on. It's another thing to arrest someone at the Chicago airport, declare them an "enemy combatant," and claim the right to hold them indefinitely without charge. One of the more ironic developments in the debate over the "unitary executive" is the enthusiasm with which conservatives, supposedly fearful of centralized government power, have embraced it. Had Bill Clinton claimed the same authority George Bush has, many of those same conservatives would be trudging through the woods on maneuvers with the Michigan Militia.
That's not to give credit to the more hyperbolic claims on the left that Bush has assumed dictatorial powers. Although people can disagree about many things that have occurred in the past five years -- the nature and extent of the threat we face, how best to cope with it, the wisdom of our invasion of Iraq -- one would be hard-pressed to argue that our basic freedoms have been substantially eroded in that time.
But that freedom hasn't been lost doesn't mean that it can't be, and if there is one concept at the heart of Madisonian democratic theory, it is that the surest way to lose freedom is to concentrate power in one branch of government, especially the executive, and especially in wartime.
And that is why the Hamdan decision is so reassuring: it was the reaffirmation of the core concept of separation of powers. People can also disagree about what protections we should afford those we suspect of being terrorists, whether they are covered by the Geneva convention, what rights should be provided in military tribunals. But because of the Supreme Court's decision, that disagreement will be made and resolved in public, by the people's representatives, and not by one branch of government, or by one man.
The main courtroom for the Court of Appeals for Cuyahoga County, in the old courthouse on Lakeside, is one of the most beautiful old courtrooms in the country. As you stand there for oral argument, engaged in the back and forth with the judges -- their back often getting the better of your forth -- you're reminded by the embossed gold inscription on the wall behind them that we are a government of laws, not men. Last week the Supreme Court reminded the rest of the country of that, and I can't imagine a better thought to carry us through the day on which we celebrate our freedom.
Here's a golden oldy from the archives: the post of May 28, 2006.
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 stop was more than a little bit shaky, anyway; after the defendant gave contradictory answers to the officer's questions, the officer claimed to have seen a gun pointing at him from underneath Favor's coat. The officer exited the car, drew his gun, ordered Favors to the ground, cuffed him, and reached into his right hand coat pocket to retrieve the gun. Which, it turned out, wasn't there. A search of the left hand coat pocket was more fruitful, revealing a quantity of marijuana; a continuation of the search found more marijuana in a pants pocket.
The municipal court suppressed the search, and the appeals court found the state's justification for the search similarly unimpressive, noting that, "the area of Euclid where Favors was stopped and questioned is not known as a high crime area." This raises the mildly interesting question of whether that would have made any difference.
In fact, it's a little difficult to determine from the case law exactly what impact a "high crime area" has on the analysis of stops and frisks. According to our good buddy Lexis, that phrase or a close variant appears in no fewer than 193 Cuyahoga County appeals cases in the past ten years, the latest less than two weeks ago. And in the leading Ohio case on stop and frisk, State v. Bobo, 37 O.St.3d 177 (1988), the fact that the area was "high crime" was one of the "totality of the circumstances" the Court used in gauging the legitimacy of a stop and frisk.
On the other hand, you have this language from State v. Clark:
The general "special attention check" issued for the area does nothing to create reasonable suspicion in a particular case. If this were so, any individual found in an area so designated would be a criminal suspect subject to a Terry stop. Even in high crime areas, a citizen is entitled to the presumption that he obeys the law. The investigatory stop in a high crime or "special attention" area still requires specific, articulable facts about the individual suspect or it is nothing more than random harassment.
On the surface, Bobo makes logical sense: a pedestrian waving at cars on Kinsman has different connotations than the same activity occurring in Beachwood. But then again, there are a lot of people who wave at cars on Kinsman for the same reason they wave at them in Beachwood. Absent some other indication of criminal activity, it's not clear what the phrase "high crime area" adds to the equation.
And it may be that the phrase has become so overworked that it doesn't contribute anything. At the last oral argument I had on a search and seizure issue, the panel openly laughed at the prosecutor's "high crime area" reference.
No rant today. In fact, I'm going to be taking the next few days off, and let's face it, if you have nothing better to do on a glorious 4th of July extended weekend than read a law blog, you need to reassess your priorities.
Speaking of extended weekends, you ever notice how, when a holiday falls on a Tuesday, especially in the summer, it winds up blowing over a week all to hell? It starts the previous Friday, when everybody figures they might as well get a jump-start on the holiday by leaving early on Friday. Nobody's going to go to work on that Monday, and by the time Wednesday rolls around, everybody's figuring, well, it's only a three-day week, we're not going to get anything done anyway.
But for those who think there's nothing like a four-day weekend, take heart. In 2007, Christmas falls on a Tuesday, which means that New Year's falls on a Tuesday, too. The following year, Christmas would normally fall on a Wednesday, but since 2008 is a leap year, the extra day pushes it back to Thursday, and we wind up with another set of four-day weekends.
The fact that I would take the time to calculate when Christmas falls over the next three years should tell you all you need to know about my work ethic.
Anyway, I'll be back with a new post on Wednesday. In the meantime, in the next two days, I'm going to do what Rush Limbaugh does when he goes on vacation. No, I'm not going to take unprescribed medication with me, I'm going to run "replays" of past posts here.
See you on Wednesday.
On the front burner for today's discussion is the Ohio Supreme Court decision from last week holding that the "agricultural" tax valuation of land requires the non-timbered portion to meet the statutory criteria.
Okay. Maybe not. We now resume our regular programming.
Which is the weekly roundup. The 5th District finds no intentional tort where resident of YMCA shot and killed employee, despite claim that YMCA should've known "of the risks inherent with working with residents who were criminals, mentally ill, drug addicts and alcoholics" (don't remember the Village People mentioning that); this is in keeping with cases making it virtually impossible for employer to be held liable on intentional tort theory for criminal acts of third persons, Mitchell v. Lawson Milk Co, 40 OSt3d 190 (1988)... Good discussion in this case from the 1st District regarding court's power to enforce a settlement agreement... Court can still order spousal support while Chapter 13 bankruptcy case pending, says the 5th District... Despite higher standard of care, common carrier not liable for slip and fall on ice and snow on bus, says our court.
And a nomination for Understatement of the Year (final award in December) goes to the 8th District in this case:
The court identified several of Wife's inappropriate behaviors with respect to her children: bringing the children to the courthouse to pass out a book she had written about the injustice of the court system and her divorce; telling the youngest child that "daddy broke up our home" and "the devil lives in daddy;" blatantly violating a court order to enroll the children in a traditional school, which caused the children to enter school one month late and hampered their transition from home schooling to traditional schooling; continuing to nurse Cleutus, contrary to medical advice, even though his teeth were rotting; and, refusing to engage in any written communication with Husband regarding the children. The court also noted that it had 'great concern about the emotional stability of [Wife].'
Have a good weekend.
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