I spent the afternoon yesterday watching the oral argument in the Ohio Supreme Court in the disciplinary case involving Richard Agopian.  I actually saw a tape; the argument was last week, and a decision will be coming down soon.

Agopian is a well-known criminal defense attorney in Cuyahoga County, and like most criminal defense attorneys, he handles a lot of assigned criminal cases.  He got into trouble because an audit of the fee bills showed the numbers didn’t compute:  if you added up the time he’d submitted on various cases, it showed that he was claiming he’d worked as much as 28 hours a day.  On a Saturday, no less.  And he did some things that, shall we say, might raise some eyebrows.  (As if putting in 28 hours on a Saturday wouldn’t.)  In one case, he was appointed on October 11.  According to his fee bill, he spent an hour opening the file, and another 9.6 preparing and filing motions.  He attended a pretrial two weeks later, and logged an hour for that, at which time he found out that his client had retained private counsel.  He submitted a bill for the $400 maximum.  The chances that he actually spent 9.6 hours preparing motions are about the same as the chances of Pauly Shore making a good movie.

But go back to that phrase, “$400 maximum.”  Watching the oral argument was interesting.  Justice O’Connor had a hard time accepting the notion that a lawyer would be paid a maximum of $400 for a criminal case.  That somebody would have a hard time accepting that is not unusual; Judge Nancy Russo, who was a member of the Task Force on Pro Se and Indigent Litigants, told me that Richard Boddicker, another member and the head of the Ohio Public Defenders Commission, refused to believe her when she told him what the maximum fees in Cuyahoga County were, finally relenting only when she had a copy of the fee schedule faxed to her to show him.  I’ve had cases where I spent three days in trial to get that $400.  I know attorneys who’ve spent a week in a kiddy-rape trial, and gotten the maximum fee for a first-degree felony — $900.  The old saw that for every hour in trial you spend three in preparation is especially valid for that kind of case:  it’s hard to get motivated when you’re being paid a pittance for a simple cocaine possession, but money takes a second seat to the realization that your client’s freedom for the rest of his life is riding on you.

And I’ll bet you that Richard Agopian had more than a few cases like that.

I’m sure there are some cases where Agopian made more than he should have.  Check that:  made more than the fee schedule allowed.  Because there’s a big difference between what he should have made and what was allowed.  Agopian isn’t exactly some rube fresh out of law school; he’s been doing criminal defense work for more than twenty years. 

This county is required, like every other in the United States, to provide counsel for indigent defendants.  It has chosen to do so at levels that are frankly obscene.  Even assuming that Agopian charged for ten hours when he should have charged for five, does anybody believe that $400 that he did get is an adequate fee for representation of a criminal defendant in a felony case, let alone the $200 that he should’ve gotten?

Whatever Richard Agopian got out of the system, the system got a lot more out of him.

You learn something new every day.  At least, I did on Saturday morning.  I was skimming through some recent cases, looking for ideas for the blog — and that I was spending Saturday morning reading cases should indicate to you that the Excite-o-Meter in my life is trending substantially below that of Paris Hilton, or indeed of most vertebrates — when I came across this case, Allstate v. Dolman.  The fact pattern – husband fools around with teen-aged baby sitter — is mildly interesting, if not exactly uncommon.

At which point the plot line veers from Lifetime Movie Network into LA Law:  baby sitter’s parents sue husband, and also husband’s wife; their theory against the latter was that she knew her husband was a skank — he’d been charged with fondling his niece’s breasts in the state they’d lived in before moving to Ohio — and had failed to warn anyone or monitor his conduct.  This is where it picks up some interest from the legal standpoint:  while the Ohio Supreme Court has held that sexual molestation is not covered by homeowner’s insurance, it has held that allowing coverage for the non-molester, under a failure to supervise or failure to warn theory, is permissible. 

The Dolman case even has some interest from a procedural angle:  The trial court, in granting summary judgment, relied on a provision of the policy that Allstate hadn’t argued, or even cited.  Despite Allstate’s claim that the appellate court could consider that provision because, by attaching the whole policy to its motion, Allstate had implicitly argued it, the Court wasn’t buying.  Citing case law which says that a movant must “specifically delineate” its basis for summary judgment in order to give the other side a “meaningful opportunity to respond,” the Court reversed.

So this is where it gets weird.  I’m getting to the end of the opinion, slightly diverted by a pleasant reverie about the picture of Christie Brinkley that appears in the link at the end of the first paragraph, when I come to this line:  ”In their second assignment of error, the Does argue that if this case is remanded, Allstate is precluded from raising the Joint Obligations Clause issue in accordance with the ‘mend the hold’ doctrine.”

Huh?  “‘Mend the hold’ doctrine”?  I’d never heard of it, and apparently neither have a lot of other people:  according to my buddy Lexis, the words “mend” and “hold” appear in the same sentence exactly twice in the entire history of Ohio case law, and one of them is the Dolman case; the other is a 1936 case out of Ottawa County about a mechanics lien.

Well, I did some more checking (our motto here at The Briefcase:  We Google so you don’t have to), and it turns out there is such a doctrine, apparently well-established in insurance law.  There’s a good discussion of it, along with the doctrines of waiver and estoppel as applied in insurance contract situations, on this blog, but the short version is that if the insurance company denies coverage for Reason A, they can’t go in and argue Reason B once litigation begins.

So maybe you learned something today, too.  About insurance law, or summary judgment procedure, or insurance coverage for sexual molesters.  Or, if nothing else, about what Idiot Level you’d have to reach to fool around if you were married to Christie Brinkley. 

I’ve done a couple of previous posts — here and here – about uncounseled misdemeanor convictions used as enhancement for subsequent crimes.  I’ve also mentioned that the relevancy of whether they were uncounseled depends upon whether a jail sentence was imposed; under Supreme Court decisions, there’s no problem in using an uncounseled prior conviction, even if there wasn’t a valid waiver of counsel, if no “loss of liberty” ensues.

That leaves a couple of questions unanswered, though.  What if the court imposes a jail sentence, but suspends it?  And in DWI cases, there’s a 3-day mandatory jail sentence for a first offense, but the courts almost invariably allow the defendant the option of an alternative “alcohol education program,” in which the defendant holes up with a bunch of other rummies in a Holiday Inn for a weekend listening to people tell him that what he did wasn’t a good thing.  Does that count as jail time?

The 8th District answers both questions in Parma v. Romain.  The defendant was convicted of DWI in Parma, and sentenced as a third-time offender because of two prior convictions; he hadn’t been represented in either.  The court found a clear waiver in the second one, but no record of waiver in the first, a mayor’s court.  He’d been given a sentence of 10 days in jail there, with seven suspended, and he could spend the other 3 either in jail or in a 3-day alcohol program.

The court looked first at the suspended sentence.  The case law from a prior US Supreme Court decision is that “a suspended sentence that may end up in actual deprivation of a person’s liberty may not be imposed unless the defendant was accorded the guiding hand of counsel.”  (That’s a great way of putting it.  Just the other day, I guided my client to a six-month stretch at Grafton.)  In this case, the court noted that “the seven days of jail time were unconditionally suspended with no evidence of any reservation of the right to reinstate them in the future, and appellant was not placed on any probation or community control sanction that could subject him to incarceration in the future as punishment.”  The short version:  it didn’t count as a jail sentence which would require counsel or a valid waiver before it could be used to enhance a subsquent offense.

Not so with the three-day stay for the alcohol treatment program.  While that’s “served in a hotel setting rather than a jail, and the focus is on education and treatment, not punishment, participants are not free to leave and must comply with the program format.”  Probably not a finding that’s going to make it’s way into Holiday Inn’s next advertising campaign (“It’s as good as jail!”)….

While on the subject of uncounseled prior convictions, an object lesson on how to handle them is provided in the 1989 case of State v. Brandon, 45 Ohio St. 3d 85.  The defendant had argued that his previous conviction, a petty theft, had been uncounseled, but the court noted that he testified he’d served six months in jail on the charge.  To the court, this was proof that he’d had counsel:  the trial court couldn’t constitutionally give him jail time if he hadn’t had an attorney, he got jail time, therefore he must have had an attorney.  The Helleresque nature of that logic notwithstanding, the court’s opinion carries a warning for attorneys handling these situations:  you don’t have to do a lot, but you have to do something.  As the court notes,

The presumption we entertain is not irrebuttable. Appellee simply failed in his burden of presenting sufficient evidence to establish a prima-facie showing that his prior convictions were uncounseled.  Indeed, appellee’s burden in this regard was hardly difficult. Had appellee’s counsel simply asked appellee during testimony whether his prior convictions were counseled, a negative response would have established a prima-facie showing of constitutional infirmity. This one question and answer would have then placed on the state the burden of proving that appellee’s prior convictions were counseled.

We haven’t done a weekly roundup for a while, and there’s some new stuff out there.

Good discussion in this 6th District case about factors to be considered in deciding whether to allow a defendant to withdraw a plea…. 8th district says that in a remand solely for resentencing, trial court has no authority to entertain motion to vacate plea… 5th District holds that restitution has to be determined by the trial court at a hearing, not left for later determination… 9th District holds that officer violated defendant’s Miranda rights prior to searching car based on odor of marijuana, but evidence comes in anyway under “inevitable discovery” rule…

Filing the transcript of a magistrate’s hearing in the court of appeals isn’t enough, the 5th District finds; it has to be filed in the trial court with the objections to the magistrate’s decision… Burger King employee submits to sexual importuning by assistant manager (no “Home of the Whopper” jokes, please), judge grants summary judgment because he doesn’t buy her story, 9th District reverses, says it’s not his job to weigh credibility on motion… If you’ve got a slip and fall in a grocery store, this 10th District case affirming summary judgment on a slip on grapes is a good place to start…

I got a comment about Wednesday’s post on voluntary dismissals, pointing out that under Rule 41(D) the court can assess costs against a dismissing plaintiff who refiles, staying the refiled action until the costs are paid.  (The court where the action was dismissed can’t assess the costs, as this case indicates.)  Those costs do not include attorney fees, however, but only those costs allowed by statute.  Under the Federal rule, the court can assess attorney fees as a condition of granting a dismissal.

And to close things off, somedays, it’s just not your day.  For the plaintiff in Knipschield v. Cleveland Inst. of Art, a Cuyahoga County case from 1994, that day was October 13, 1989, the events of which are recounted in a case from last week: 

In the Knipschield case, the defendant ran over the plaintiff, as he was backing out of a parking space, while she was bent over tying her shoe.  After the defendant felt his truck raise up and back down, he stopped and noticed a bystander waiving his arms. Plaintiff thought the bystander was directing him to pull forward, which he did, thereby running over the plaintiff a second time… On appeal, the Eighth District Court of Appeals found a material issue of fact existed with respect to whether the defendant exercised reasonable care in driving over plaintiff a second time.

Apparently, the court concluded that defendant did exercise reasonable care in driving over plaintiff the first time.

Have a good weekend, and see you on Monday.

If you’re like me — and about 90% of other lawyers — getting hit with a stack of interrogatories or document requests doesn’t exactly elicit the reaction, “Jeez, I’ve got to drop everything and get the responses out on these!”  Timely responses to discovery are about as common as Jessica Simpson winning at Scrabble.  With one exception:  requests for admissions under Rule 36.  As more than a few lawyers have learned the hard way, requests come with a self-enforcing time limit:  the other side can ask you nasty questions like, “Admit that you were negligent,” and if you don’t respond within the 28 days allowed by the rule, the request is deemed admitted.

Maybe.  I recently had to do a brief for a lawyer who’d been tardy in filing his responses, and it turns out the law is a bit more forgiving.  Under Rule 36(B), the court can permit withdrawal or amendment of a response (and “amendment” equals a late filing) “when the presentation of the merits of the action will be subserved thereby and the party who obtained the admission fails to satisfy the court that withdrawal or amendment will prejudice the party in maintaining his action or defense on the merits.”

That allows a lot of discretion, and the courts — especially at the Federal level — have been quite willing to use it to allow filings out of rule.  I found cases where the responses were allowed after summary judgment had been filed, and in one case where they were allowed after the trial started.  In one, the defendant hadn’t gotten around to answering requests that had been filed two years earlier, and the court simply gave him a date to respond to them.  (If you start with the forfeiture case reported at 863 F.Supp. 442, it’ll lead you to the others.)

The Ohio courts haven’t been quite as willing to absolve untimeliness in responding, especially where the conduct is egregious — like filing the responses six months after they were due and nine days before trial, as happened in one 1998 case.  The best case here is this one from the 9th District, which held that the trial court’s refusal to permit a late filing was an abuse of discretion because of the “basic tenet of Ohio jurisprudence that cases should be decided on their merits.”

Love those basic tenets.  They’ll get you off the hook eight times out of ten.

An attorney I know has a robbery case, one of those shoplifting cases gone bad, where the defendant has a tussle with security officer at Home Depot over a pair of wirecutters and winds up with a first degree felony charge instead of a petty theft.  That’s based on him supposedly swatting the guard with a 14-inch pipe wrench, a sequence of events which, at least according to the videos, happened in a dimension of time and space other than the one we’re currently occupying.  That still leaves the defense with a problem:  does the tussle with the security guard establish the element of force, which is sufficient for a robbery, albeit one that’s a third degree felony?

There’s a great case out of our district on this, State v. Eskridge, which holds that it might not be.  The defendant had gone to Angela’s Family Restaurant and ordered a cup of coffee.  Apparently dissatisfied with the quality of the brew, when the cashier opened the register, he reached over the counter, grabbed a fistful of dollars, and dashed out the door.  The cashier claimed that he pushed her when he grabbed the money, and although the defendant denied it and the video evidence was inconclusive, that was sufficient for the jury to convict him of robbery. 

The court of appeals, though, reversed the conviction, finding that even if there was a slight push, that wasn’t sufficient to elevate the crime from a simple theft to a robbery.  The court looked at prior case law, and the committee comments to the robbery section, and concluded that the force element wasn’t satisfied if the force used wasn’t enough to pose a danger of physical harming the victim, or causing the victim fear.

It’s not quite time to put on the party hats, though; there are plenty of cases out there which hold that the defendant scuffling to get away, even if he isn’t intending to cause harm and does nothing more than swing his arms around, is enough to get him convicted of the lesser offense of robbery.  That’s what happened in State v. Sumlin, where the defendant grabbed a steak, stuffed it in his pants [your joke here], and tried to run out of the store, only to be tackled by the security guard.  The court held that the defendant’s attempt to break away from the guard was sufficient force to constitute a 3rd degree felony robbery, and cited a bunch of cases holding the same way.

If you look at the robbery section closely, though, you find an interesting anomaly.  Under 2911.02(A)(2), the prosecution has to prove that the defendant “inflicted, attempted to inflict, or threatened to inflict physical harm on another.”  Under 2911.02(A)(3), the state has to prove the defendant “used or threatened the immediate use of force against another.”  if, as Eckridge holds, the force element requires sufficient force to pose a danger of physical harm, what’s the difference between (A)(2) and (A)(3)?   

What happened here is the changes made to the criminal code in 1996.  Up to that point, aggravated robbery was robbery with a gun or where serious physical harm occurred, and simple robbery was where force was involved.  In that context, it was perfectly understandable to define force in terms of the potential for physical harm.  In light of the change in the statute, that’s not so clear-cut:  if the force required is sufficient to pose the risk of harm, the state can make the argument that you’ve now got a felony under (A)(2) instead of (A)(3).

Yeah, bet you’ll be spending the rest of the week pondering that one, huh?  See you tomorrow.

Here’s an interesting chain of events:  the defendants file motions for summary judgment, the court issues an order granting them, faxing the order to all the parties.  The next day, the plaintiff voluntarily dismisses the action; a few hours later, the court’s order granting the summary judgment is journalized.  What happens?

Well, according to our court’s decision last week in Witt v. Lamson, the summary judgment is no more.  Actually, this was pretty much of a no-brainer; as Judge Gallagher points out in his opinion, Rule 41(A) and the case law gives the plaintiff an unfettered right to dismiss the case any time prior to trial or judgment.  The opinion notes the plaintiffs’ actions “violate a sense of fair play,” and that the rule is “open to unfair and abusive use,” citing Justice Stratton’s dissent in an Ohio Supreme Court case earlier this year that I discussed here. 

It may be that the concerns the court cites are unfounded.  After all, if the plaintiffs refile, under our court’s rules, the case will be reassigned to the same judge who granted summary judgment.  Unless the plaintiffs use the intervening time to come up with something they didn’t have before, the result is going to be the same the next time around.  Short of an unusual situation, for example, if the judge who granted the motion was going to be retiring, or had been defeated for re-election, it’s hard to see how the plaintiff is going to benefit from this tactic.

Still, the contention that allowing the plaintiff to dismiss at any time up to the day of trial creates a potential for abuse is hardly a novel one; other courts have made the same point, and the Supreme Court in the recent case mentioned above referred the question of revising the rule to its Commission on the Rules of Practice and Procedure. 

I think within the next few years you’re going to see a modification of the rule, more in line with Federal practice.  There, the plaintiff can dismiss unilaterally only prior to an answer or motion for summary judgment being filed.  After that, the plaintiff needs either a stipulation by the parties, or an order of court “upon such terms and conditions as the court deems proper.”  Those “terms and conditions,” of course, can include payment of the defendants’ attorney fees. 

It’s going to happen.  You heard it here first.

The crew down on Lakeside has been churning out some decisions, so I thought I’d play catch-up and check some of them out.

If you’ve been thinking of making an argument on appeal that the failure to advise a defendant that he was going to be classified as a sexually-oriented offender made his plea involuntary, don’t bother.  The court rejected that argument in State v. Tackett, holding that since that raised a non-constitutional issue, only substantial compliance with the statute was required, and the plea satisfied that test despite the court not informing him that designation as a sexual offender was mandatory. 

Another stop-and-frisk ruling in a drug case appropriately named State v. Scales, where the court reversed a denial of a motion to suppress.  The police approached the defendant after they spotted him waving down a car, and a frisk revealed marijuana and cocaine.  The court said that the defendant’s waving down a car wasn’t sufficient to warrant the stop.  The problem with search cases, though, is that they’re so fact-dependent the outcome hinges almost entirely on what panel you wind up with, and this one’s no different.  Then again, that’s the general problem with Fourth Amendment law. The former is so complex and multivariate that it’s virtually impossible to draw any definitive bright lines.  And as far as what panel you wind up with is concerned, the same thing applies in the lower court; any good defense lawyer can predict the outcome of a search motion in the trial court with 90% confidence as soon as he hears what judge is assigned to the case out of the arraignment room.  Anyway, if you’re a defense attorney, Scales is definitely a keeper.

I’ve talked about arbitration cases in the past — here and here — and this court’s welcome trend of subjecting them to exacting scrutiny.  The court goes in an opposite direction, though, in Bell v. Hollywood Entertainment, upholding an arbitration agreement which compelled an employee to arbitrate any employment disputes, including discrimination complaints.  What’s dismaying is that the court didn’t go beyond the fact that the employee signed the agreement — actually, signing it was a condition of her employment — never even considering questions of substantive or procedural unconscionability, as it had in the previous cases involving consumer arbitration clauses.  There doesn’t seem to be much reason for this:  yes, a prospective employee can choose to go to work instead for another company which doesn’t have such a clause, but a consumer can choose to do business with a company which doesn’t, too, and that hasn’t prevented the courts in the latter cases for making a more thorough analysis.

I’m going to be to taking the weekend off from blogging.  I’m giving some serious thought to making that permanent decision:  seven days a week on law stuff is probably more than I need to do, and probably than you need to read.  Or care to read, for that matter.

After all, there are other things in life.  I’m going to spend the weekend enjoying them.  You do, too, and I’ll see you on Monday.

A quick side trip into techie stuff, and if you’re reading this, chances are you’re somewhat computer literate, and at least slightly interested in techie stuff.  Internet Explorer has a new beta version which you can check out and download here.  The tab feature is especially helpful.  I’m one of those people who winds up with 17 different Explorer windows open, and having the ability to tab from one to another is nice.  So is the ability to print only a portion of a web page, instead of the whole thing.

One more note on techie stuff:  in a few weeks, this site will be getting a major upgrade.  Some of the changes will just be cosmetic, but others will be functional:  you’ll have the ability to print out or email individual posts.  I’ll explain more when it goes up. 

Powered by dreams of the future, on to the law:

I mentioned the other day that you can get sidetracked doing research, chasing down cases that have nothing to do with what you’re looking for but sound interesting.  The opposite situation is where you find a bunch of cases that are related, but not in ways that you would have thought; sort of a “six degrees of separation” effect.

For example, yesterday I talked about the 8th District’s recent decision in State v. Bullitt, which held that scientific testimony was necessary to establish that a controlled substance was crack cocaine.  The state had presented only a police officer’s testimony identifying the drug, but defense counsel didn’t make that the basis of his Rule 29 motion, arguing instead only that there wasn’t sufficience that his client was the one who made the transaction.  The court still threw out the conviction, on a plain error analysis. 

As I mentioned, Bullitt was based on a 1975 Ohio Supreme Court decision, State v. Maupin, but failed to consider the much more recent decision of State v. McKee, which held that lay opinion evidence on drug identification was permissible if a proper foundation had been laid.  The Court in McKee faced the same problem that the Bullitt court did — defense counsel didn’t object to the opinion evidence — and resolved it in the same way.  Justice Cook, though, wrote a dissenting opinion which argued that plain error wasn’t applicable:  since the various courts of appeals were split on the issue of whether expert testimony was necessary, the error in allowing it wasn’t “plain.”  I’m not sure I buy into that analysis, but his opinion is a good place to start for an appellate lawyer with a plain error issue.

One of the other cases that Bullitt relied on was our district’s decision in State v. Titsworth, where the court threw out a conviction for trafficking because the state had failed to present any laboratory evidence that the substance was heroin.  The court acknowledged Maupin‘s conclusion that police testimony about marijuana was permissible, but held that heroin was horse of a different color.  The more interesting aspect of Titsworth was Judge Corrigan’s dissent, in which he argued that by failing to seek an independent test of the drugs, as he was entitled to under RC 2925.51(A), the defendant “waived his right to an independent laboratory analysis and any argument that the state failed to prove, through testing, that the alleged substance was heroin.”

Now, Judge Corrigan has developed an annoying habit of writing logical opinions which I wind up agreeing with even when I don’t want to, but I think he’s off-base with this one.  I doubt if the county commissioners would be pleased if every lawyer in a narcotics case demanded an independent drug test (which is paid for by the state, and can cost as much as an appointed lawyer does), on the grounds that if they failed to do so, the state was relieved of its obligation to prove an element of its case. 

But RC 2925.51 also figured into the 3rd District’s decision in State v. Bates, which involved the same issue as Bullit and Titsworth:  can a police officer testify as to the identity of a controlled substance?  Actually, the court didn’t rule on that issue specifically.  In Bates, the police officer read the lab report into evidence, as permitted under RC 2925.51(B).  The defense argued that the report was inadmissible because it didn’t comply with the statute’s requirement that when the report was given to defendant prior to trial, it had to contain a provision notifying him that he could demand “live” testimony of the preparer by serving that request upon the prosecutor within seven days of the receipt of the report.  The trial court let the report in, ruling that 2925.51 was a discovery provision and required only substantial compliance, but the appellate court reversed, deciding that the section was an evidentiary provision — in essence, an exception to the hearsay rule — and that strict compliance was necessary.  The court noted in passing that since there had been no testimony by the officer as to the nature of the drugs, the lab report was the only evidence of that, when it went so did the case.

And the discerning reader will note that that raises the question of whether 2925.51 survives Crawford v. Washington, as we discussed last week.  Probably so; since the defendant does have the option of demanding the testimony of the person performing the test, that would seem to satisfy Crawford‘s requirement that the defendant need only be afforded an opportunity to cross-examine.

At least, that’s what Judge Kevin Bacon would probably rule.