September 2006 Archives
(Another one from June.)
Questions that came up this week in the office:
Does a passenger have standing to object to the stop and search of a car? Yes and no. He has standing to object to the stop, since it's an invasion of his privacy, but not to a search of the car, unless he's the owner or driving it with the owner's permission, according to State v. Carter. A good 8th District case on this is State v. Hill, which holds the same way; it also has a nice result and deals with a few other issues, like filing a motion to suppress out of rule and whether the motion meets the particularity requirement, in a defense-positive way. If you show it to the trial court, though, you might want to leave out Judge Gallagher's dissent, because he probably gets the better of it on several of those issues.
If you have separate trials, can you get a co-defendant's exculpatory statement admitted under the declaration against interest hearsay exception? Not automatically; the rule, 804(B)(3), specifically provides that it can't be admitted unless "corroborated by circumstances clearly indicating its trustworthiness." One of the best cases to have here is the 11th District's decision in State v. Cohen. It reversed a murder conviction for refusal to admit the co-defendant's statement, and contains an excellent analysis of the issue and the various considerations that should go into the determination of trustworthiness.
Can the judge increase your sentence if you violate probation above what she gave you when she first sentenced you? No. The sentence she hands down originally is the one you get if you violate probation. In State v. Barr, the judge had announced a sentence of 33 months in prison when she gave the defendant community control sanctions, but increased that to 84 months when the defendant violated them. Our court said that's a no-no.
A week ago, I mentioned that the US Supreme Court had come down with a decision which had some ominous implications for the continued vitality of the exclusionary rule. Defense counsel might want to revise their suppression motions to assert a violation of Ohio's search and seizure amendment, Article I, Section 14. If the Supremes do throw out the exclusionary rule, this allows you to claim that it should be imposed under the state law. That might not afford much hope; arguing whether the US or Ohio Supreme Court is more conservative is sort of like debating which is the smarter Hilton sister.
Where a prenuptial agreement spells out what spousal support a wife is to receive upon divorce, is temporary spousal support included in that amount? No, says the 8th District in Cangemi v. Cangemi. The parties married in 1996, at which time the husband had a net worth of just north of $8 million, compared to the wife's $33,000. The prenup provided the wife was to receive $5,000 a month for one year in spousal support upon the journalization of a divorce decree. She filed for divorce three years later, and the court ordered temporary support of $6,000 a month. It took six years until the final decree, and in the interim hubby coughed up enough in temporary support to fund a small South American republic. His argument that the temporary support should have counted toward his final tab fell on deaf ears, and for good measure, he had to shell out $15,000 toward his ex-wife's attorney fees. Ain't love grand?
That's a bit too flippant, actually. (Flippant? Moi?) Judge Cooney's opinion - joined in by Judges Karpinski and McMonagle - was meticulously thorough, and there's no real basis for quibbling with the result: the decision with regard to temporary alimony is supported by the case law, and most of the specific determinations, some of which went against the wife, were essentially dictated by the language of the agreement.
Somewhat interesting, though, is the opinion's assertion that "a strict application of the law of contracts is not appropriate, rather, the terms of the agreement and the intent of the parties at the time of execution of the agreement is of prime importance." It's not entirely clear what that phrase means; obviously, "the terms of the agreement" and "the intent of the parties" are part of the law of contracts. There's language in other decisions, such as the Supreme Court case of Fletcher v. Fletcher that prenups are "contracts and generally the law of contracts applies to their interpretation and application."
To be sure, they're not treated the same as the ordinary business contract, because of the fiduciary relationship of the parties, and there's no question that the alimony provisions, at least, can receive heightened scrutiny for unconscionability. That's one reason that spouses who rely on such agreements often find that they don't offer nearly the protection originally envisioned. It's possible that some creative lawyers might seize on the remark in Cangemi to argue that the divorce court's equitable powers give it even greater ability to fashion a remedy not entirely, or even closely, consistent with the provisions of the prenuptial agreement.
(I'm on vacation. This post is from June.)
A couple of recent US Supreme Court decisions are worth mentioning. I'll have more on the Court's death penalty decision in a couple of weeks. The big decision the other day was United States v. Gonzalez-Lopez. The defendant was indicted for conspiracy to distribute 100 kilos of marijuana, and called in a California lawyer who'd just negotiated a plea deal in a major drug case in that very district. The district court refused to grant the attorney's pro hac vice application, though, and Gonzalez-Lopez was forced to retain another lawyer. The case was tried; Gonzalez-Lopez lost and was sentenced to twenty-four years in prison, with the not unlikely prospect of winding up as the "wife" of someone named Bubba.
But maybe not -- the court of appeals found that the trial court erred in denying the California lawyer permission to represent the defendant, and vacated the conviction. The government took it up to the Supremes, arguing that unless the defendant could show that he was actually prejudiced by having to use a different lawyer, the conviction should stand.
Four justices -- Alito, Roberts, Thomas, and Kennedy -- bought it, finding that as long as the trial was fair and the lawyer competent, the defendant had no room to complain. The other five justices, though, did not, and affirmed the appellate court's decision vacating the conviction.
In fact, not only did Justice Scalia side with the liberal wing, he wrote the majority opinion, holding that the Sixth Amendment right to counsel meant not just that the defendant had a right to a lawyer, but that he had the right to a lawyer of his own choice, and that failure to allow him to exercise that right was a "structural error" in trial that required reversal. Scalia's stance on this had been pretty much foreshadowed at oral argument back in April, when he rebuked the government lawyer's claim that competent counsel was sufficient by declaring, "I don't want a 'competent' lawyer. I want a lawyer to get me off. I want a lawyer to invent the Twinkie defense. I want to win.''
As you might guess, I'm not one of Scalia's bigger fans; his opinions are so right wing I've wondered lately whether they have to be translated from the original German before publication. Still, I'll give the man his due: he nailed this one. Lawyers aren't fungible commodities, and if a defendant has the ability to afford his own lawyer, he should have the right to pick the one he wants.
(This was originally posted here back in May.)
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.
Tired of getting those horrible ties at Christmas? Here's something to ask for instead: the Care-O-Meter. Put it in a prominent place on your desk, in view of the people across from you, and then point to it whenever you have a client who suffers from the misapprehension that "lawyer" is ancient Greek for "someone who wants to listen to my life story." Sold in all fine stores.
As you're reading this, I'm over a thousand miles from Cleveland. It's our 25th anniversary, and My Lovely Bride and I spent the weekend in Vegas, and are now ensconced in a bed and breakfast in Bryce Canyon National Park. It doesn't quite have the visual impact of, say, the Main Avenue Bridge, but it'll just have to do.
And no, I didn't take time out from my hikes to blog. This post was actually written over a week ago; the software I'm using allows me to decide in advance when I want to post a note. Needless to say, whatever I'm going to do here this week, I really did last week. Actually, whatever I do here this week, I really did months ago. I'm going to do what Rush Limbaugh does when he goes on vacation. No, not take drugs without a prescription; I'm going to re-run posts I've done in the past. For the rest of the week, you'll get some Golden Oldies.
But not today. Last week, I highlighted some other legal blogs out there. On the lighter side this week, we have Underneath Their Robes, featuring "news, gossip, and colorful commentary about the Federal judiciary." Typical of their style is this post from a couple of years back on "superhotties" of the Federal bench. Before you start salivating, keep in mind that of the twelve women featured, only two are under 50. (I didn't look at the ages of the nine men, because I'm not into sort of thing. Not that there's anything wrong with it.) The article salaciously notes that Judge Kimba Wood of the Southern District of New York auditioned for the position of Playboy Bunny, but if my calculations are right, that would have had to occur, at the latest, sometime during the Nixon administration.
Back to the mountains.
I'm not going to do the roundup this week -- or next; reason why on Monday -- because I wanted to note a recent habeas decision out of the US 6th Circuit, Getsy v. Mitchell. The case results from a contract killing that occurred back in 1995, when John Santine hired three people -- Jason Getsy, Richard McNulty, and Ben Hudach -- to kill a business rival. (They wound up only wounding the rival, but killing his wife.) Santine was tried for aggravated and murder for hire, and the jury convicted him of the first but acquitted of the second; he wound up with life in prison. So did McNulty and Hudach when they pled guilty. Getsy, who was 19 at the time, went to trial, was convicted, and was sentenced to death. The Ohio Supreme Court expressed some misgivings on the disparity in the sentencing, but unanimously affirmed the death penalty.
The district court had similarly dismissed Getsy's habeas petition, but the 6th Circuit reversed by a 2-1 vote. It found first that imposing the death sentence upon Getsy, while the more culpable Santine escaped with a life sentence, was disproportionate. But the court also found that the two verdicts -- the one acquitting Santine of murder for hire, and the one convicting Getsy for committing the murder -- were inconsistent.
It's long been the law that consistent verdicts, as between separate trials, was not required; for example, there's nothing wrong with one jury convicting an aider and abettor while another acquits the principal. The 6th Circuit, though, drew on a line of cases which have held that in crimes which necessarily involve two people -- conspiracy, for example -- acquitting one and convicting the other is not a permissible result.
There are some flaws in that argument, as the dissent points out, and it may be that the court was simply looking for a reason to vacate a deeply troubling death sentence. In fact, the Supreme Court's review of the mitigation should be disturbing to anyone other than the most rabid advocate of capital punishment: Getsby apparently had no prior criminal record, and clearly was afraid of Santine. If the death penalty is indeed to be reserved for "the worst of the worst," it's hard to see how Getsby makes that cut. But the Circuit Court's opinion's is definitely worth a look, because it might have some ramifications beyond capital punishment law.
And, as long as you're in the mood for reading, you might want to check out the 125-page opus on Federal sentencing from Judge Young of the District of Massachusetts. Back in June of 2004, Young wrote a 174-page opinion explaining why the Federal sentencing guidelines were unconstitutional. The next week, the Supreme Court decided Blakely v. Washington, and another six months later came to the same conclusion in Booker that Judge Young had. Young begins his more recent opinion by noting
For seventeen years federal courts had been sentencing offenders unconstitutionally. Think about that. The human cost is incalculable -- thousands of Americans languish in prison under sentences that today are unconstitutional. The institutional costs are equally enormous -- for seventeen years the American jury was disparaged and disregarded in derogation of its constitutional function; a generation of federal trial judges has lost track of certain core values of an independent judiciary because they have been brought up in a sentencing system that strips the words "burden of proof", "evidence", and "facts" of genuine meaning; and the vulnerability of our fair and impartial federal trial court system to attack from the political branches of our government has been exposed as never before in our history.
Young goes on to note what many other observers have concluded: that post-Booker sentencing is not much different from what it was before. There's a lot of citations and a lot of analysis, and you may want to wait until it comes out on video, but if you do Federal trial work, it's worth a look.
If you look at the bottom of the sidebar on the right, you'll see a little icon that says "Site Meter." If you click on it, it doesn't do anything, but if I do, it'll go to a site called... well, Sitemeter. Sitemeter lets me keep track of how many people are coming to my site, and where they're coming from. "Where they're coming from" isn't quite as Orwellian as it sounds: all I'll learn is the Internet Service Provider (Ameritech, Verizon, etc.) of any person who enters the site, their basic location (generally, city and state), and how they entered.
That last one is somewhat interesting. Most people who come here do so by entering the URL -- www.briefcase8.com -- directly into Internet Explorer. Some people get here by accident; they'll Google a particular phrase, and my site will be one of the hits, and they'll come here that way. Well, the other day I checked and someone had entered the site by Googling "Christine Agnello Russo," a candidate for Cuyahoga County Common Pleas Court who's gotten, shall we say, some unfavorable publicity, as this story and this one might indicate. (My contribution -- in the second paragraph of this post -- was to hypothesize the next story in this sequence.)
The weird thing is, the person who was looking for a story on "Christine Agnello Russo" -- not just Christine Russo, mind you -- was doing so from a computer in California. I checked to see whether l'affaire Russo had hit the national papers, but, again according to Google, it's purely local at this point.
One story that did make the national news is that of Trenton Duckett, a two-year from Leesburg, Fla., who went missing on August 27. Needless to say, this proved an ample supply fodder for the TV talk shows, especially the "legal" ones. A primary one in that category is CNN's show, "Nancy Grace." Grace is a former prosecutor from Atlanta turned avowed victim's advocate; I caught her act once, and concluded that I'd rather undergo waterboarding than subject myself to it a second time. Grace conducted an interview with the toddler's mother on September 7, and gave her the third degree, quizzing her repeatedly about why she hadn't taken a polygraph. (I didn't catch the interview -- see above reference to torture methods, albeit ones which have received the Presidential seal of approval -- but you can get the basics here.)
The next day, the mother killed herself.
Since then, many trees have died to provide the paper to debate whether Grace's hectoring caused the mother's suicide. A like supply of neutrons has been expended in discussing the case on the blogosphere as well. The on-line magazine Slate has an interesting take on the brouhaha, with even more links if you want to find out why the only thing worse than a creepy talk-show host or a creepy lawyer is a creepy talk-show host who's also a lawyer.
A couple of weeks ago I mentioned a case in my Weekly Roundup dealing with the attractive nuisance doctrine. What I didn't mention is that when I read the case, my initial reaction was, "Hey, hold it! Ohio doesn't have the attractive nuisance doctrine." Turns out Ohio finally adopted it in Bennett v. Stanley in 2001.
Needless to say, color me embarassed: here I'm writing a legal blog, and I don't know about a major change in the law. Turns out I shouldn't have been too embarassed. I asked four lawyers and two judges: none of them had heard about it, either.
Guess we didn't get the memo.
I wanted to use today to follow up on some previous notes. The other day I mentioned State v. Palmer in my discussion of recent trends in speedy trial decisions. In Palmer, the state had taken 79 days to respond to a defendant's motion for bill of particulars, and despite previous decisions holding that the filing of such a motion tolled the running of speedy trial time, the Palmer court held that this wasn't reasonable, and thus counted it against the 270 days. (Actually, 90 days in this instance, since the defendant was in prison.)
Palmer was notable for another reason, though: the state had filed a request for discovery, and argued that the time was tolled until the defendant responded to it. The court didn't buy that, and the 8th District rejected a similar argument a couple of years ago in State v. Borrero.
Be forewarned, though: the Supreme Court has allowed an appeal from Palmer on the question of
"Whether a defendant's failure to timely respond to the State's request for reciprocal discovery is a period of delay occasioned by the 'neglect' or 'improper act' of the defendant that tolls the speedy trial time pursuant to RC 2945.72(D) even in the absence of a Crim.R. 16 demand for discovery."
I wouldn't want to handicap this one. On the one hand, the Supreme Court's speedy trial decisions have almost invariably run against the defendant and in favor of liberally applying tolling provisions. On the other hand, since Rule 16 doesn't specify any time period for the defendant's response (or for the prosecution's for that matter), deciding what is a "failure to timely respond" opens up a can of worms. If the defendant hasn't responded -- as, let's face it, a lot of us don't -- that's one thing; it's pretty hard to argue that you responded "timely" if you didn't respond at all. But what if the defendant files his response a day or two before trial? What part of that period isn't "timely", and should be counted against the defendant?
The other thing I wanted to follow up on is a post I did about three months back on marijuana law enforcement, in which I noted the disturbing tendency to prosecute people for trafficking in marijuana if they happened to have more than a few small baggies of the stuff on them. The prosecution claim is that this is the way dealers sell marijuana; as numerous defense lawyers have pointed out, that means it's also the way users buy marijuana, and inferring trafficking from possession of a small number of baggies doesn't make much sense.
A number of judges have come to the same conclusion, and Judge Stuart Friedman of the Cuyahoga County Common Pleas Court wrote an opinion in one such case. You can find it here. It obviously is not binding precedent on the other judges, and the opinion makes clear that it's a fact-specific situation. Had there been other indicia of trafficking, such as the defendant waving down cars or approaching people and engaging in hand-to-hand transactions, the result might have been different. But it's an excellent opinion to use to establish that trafficking can't be inferred merely from possession of small numbers of baggies.
You'll notice that I've reworked the links on the right. I've cut down on some of the Ohio court stuff; my guess is that the next person who uses the link for the 6th District will be the first. I've added some links to other blogs. Appellate Law and Practice is what it says; I've limited it to the decisions of the US 6th Circuit, but you can find just about anything there. The Legal Theory Blog is just that; discussions of law on a more abstract level. (Such as a recent piece on the alarming trend of disposing cases by way of summary judgment.) When that makes your head hurt, you can go over to Anonymous Lawyer, a humorous blog by a fictional hiring partner at a fictional large law firm. (One of his recent posts bemoaned the death of Steve Irwin, the crocodile hunter, and the effect this might have the partner's ability to stage a Snakes at the Firm day.) And then there's Inside Opinions, which basically is a blog about legal blogs. You can find some interesting stuff there, too, like this recent piece on the use of song lyrics in judicial opinions. It notes that Bob Dylan is the most frequently cited songwriter, and that
one Dylan lyric, "You don't need a weatherman to know which way the wind blows," has virtually become boilerplate in California appellate decisions discussing the need for expert testimony.
And for those who are more modern in their music tastes, the author notes
the increasing tendency of courts to cite hip-hop lyrics.... As an example, [the author] offers a 2005 decision in which the 7th U.S. Circuit Court of Appeals was compelled to explain the difference between a "hoe" and a "ho." In so doing, it referenced the lyrics of rapper Ludacris, "You doin' ho activities with ho tendencies."
Can the defense object to a charge on a lesser-included offense? And in a bench trial, is the judge's decision to convict on a lesser offense the same as, in a jury trial, charging the jury on the lesser offense?
Those are the questions raised by In re C.S., decided by the 8th District just last week. (The discerning reader will note that yours truly was appellate, though not trial, counsel.) The facts are somewhat sordid, in a Clintonian sort of way: the defendant, who was 16, was interested in a young girl who was a year younger. Eschewing the flowers-and-candy approach, the defendant instead tugged her into the boys' bathroom at school, and the two went into a stall where she proceeded to fellate him. Their romantic reverie was interrupted by the entrance of a stranger in the rest room; after a couple of minutes, the intruder left, and the couple picked up where they'd left off.
Not exactly Romeo and Juliet, admittedly. Anyway, the school got wind of it, and the defendant was charged with rape and kidnapping. The case proceeded to trial in the juvenile court, with the defendant's posture being that the act was consensual. A few months after hearing the evidence, the court came up with a somewhat bizarre verdict: it found that there were actually two incidents -- the one before and the one after the other person entered the bathroom -- and that the first one was consensual and the second one not. To top it off, the court convicted the defendant of attempted rape and kidnapping.
It's hard to figure that last part out. This seems to be a case that calls for Yoda's classic admonition: "Do or do not. There is no try." There's no question there was sex; the only issue was whether it was consensual. So we argued that that the judge erred by convicting him of the lesser-included offense, analogizing that to a judge's charging the jury on a lesser-included in a jury trial.
Normally, we're inclined to think of a lesser-included offense benefitting the defendant, but that's not invariably true. The law is clear that a court shouldn't instruct on a lesser-included unless there's some version of the facts by which the jury could acquit the defendant of the greater crime and convict him of the lesser. The reason for that was best given in State v. Johnson, 36 OSt3d 224:
Appellee was entitled to the unqualified right to have the prosecution prove every element of the offense of rape beyond a reasonable doubt, and if the state was unable to do so, he was entitled to an acquittal. Where, as here, the evidence does not support a conviction on a lesser included offense, it would be erroneous to instruct the jury thereon, as to do so would confront the jury with the choice of reaching an unreasonable conclusion. If appellee was not guilty of rape, his liberty should not be dickered away by a compromised verdict upon another crime.
There aren't a whole lot of cases where a trial court was reversed for giving an instruction on a lesser-included over the objection of the defendant, but there are some. In fact, we found one right on point: a 1981 decision out of Lucas County reversing the a conviction of attempted rape, where the defense was consent and the trial court had given the charge of the lesser-included despite the defendant's objection.
And the court of appeals here -- Judges Celebrezze, Corrigan, and Gallagher -- agreed, finding that the trial court's actions "were unreasonable, arbitrary and unconscionable when it amended the appellant's original charge and found him delinquent of the lesser included offenses."
The remedy the court granted, though -- reversal and remand for new hearing -- raise some interesting double jeopardy questions. I'll get to that a couple of weeks from now.
One of the other things I can do with the new site is use pictures. Which allows me to introduce the new additions to the Bensing family. That's Isabel on the right, and William's the little charmer on the left. This continues the mildly unfortunate modern trend of giving pets human names. We know a couple who have cats called Alexander and Victoria. Their kids are named Rags and Muffin.
I know, you're thinking, "Is there any length to which you will not go in an attempt to market your site? Using kittens? And how did you get them to sit in that briefcase?" Easy: used a whip.
The Supreme Court last week, in State v. Sanchez, decided another case on speedy trial rights under RC 2945.71, this time holding that the filing of a motion in limine tolls the time. This is in line with the court's 2002 ruling in State v. Brown that the filing of a motion for bill of particulars or a request for discovery by the defense similarly tolls the time. All of these cases are amply supported by precedent: the clear majority of appellate districts had ruled that motions in limine tolled the time, and so had the clear majority of appellate districts with respect to motions for bills of particular and requests for discovery.
I don't think this is good law from a legal, logical, or practical standpoint. Let's start with this language from Sanchez: after quoting the statute's provision that the time is extended only by
"(E) Any period of delay necessitated by reason of a plea in bar or abatement, motion, proceeding, or action made or instituted by the accused." (Emphasis in Sanchez)
the court concluded,
The statute does not require a showing that a motion caused delay before the running of speedy-trial time may be suspended.
I'm sorry, but that doesn't make sense. If the time is extended only by the period of delay necessitated (and notice that the Court didn't emphasize that word) by the defendant's motion, how can you conclude that it's not necessary to show that the defendant's motion caused a delay? Put another way, how can the time be tolled if the motion didn't necessitate a delay, when that's the showing required by the statute? What Sanchez and Brown essentially do is rework the statute so that the word "necessitate" is written out of it: those decisions basically mean that any motion filed by the accused tolls the time, whether or not it "necessitates" a delay.
This doesn't make any sense from a practical standpoint, either. The court in both cases claimed that the mere filing of such motions placed a strain on prosecutors; as the court stated in Brown, "discovery requests by a defendant divert the attention of prosecutors from preparing their case for trial, thus necessitating delay." I doubt if there's a shred of empirical evidence to support this. Moreover, as the 11th District noted in State v. Palmer,
The state is presumed to have all of its facts and its witnesses prepared and ready to go prior to seeking its indictments, as they choose the time and place to proceed. It is unfathomable that they do not have their discovery and do not have the information readily available in their file to formulate a bill of particulars. If the time, the date, and the offense information are not available to them, they should not seek an indictment or charge a defendant until they are prepared.
Of course, Sanchez and Brown are the law, and that's not going to change. That doesn't mean there aren't loopholes, though. Even Sanchez notes that the decision there "does not imply that the state may prolong its response time or that a trial court has unbridled discretion in taking time to rule on a defense motion." There are cases holding that if the delay in the prosecutor's response is unreasonable, the state doesn't get the benefit of tolling. Palmer is one of them; there, the state took 79 days to file its bill of particulars, every day of which the defendant was sitting in jail, and the court said there was no reason for that.
Still, it's tough to win on a speedy trial motion: last year in Ohio, according to the Supreme Court's statistics, out of the 123,000 felony cases pending at some point in time, only 94 were dismissed for speedy trial violations. Brown and Sanchez make it even tougher, and that comes at the expense of doing what the speedy trial statute was intended to do: ensure an expeditious resolution to criminal cases. Under the Supreme Court guidelines for courts and judges, felony cases are supposed to be disposed of in six months. Since 1999, the percentage of cases exceeding that figure has increased by one-third. Wonder why?
There were a couple of significant decisions out of the Supreme Court on Wednesday. In State v. Lather, the court held that a waiver of Miranda rights didn't have to be express, but could be inferred from the defendant's conduct. And in State v. Sanchez, the court held that the filing of a motion in limine tolled the running of the speedy trial statute. It also held that an immigration detainer didn't keep the defendant from getting the benefit of the triple-count provisions of the statute for time spent in jail. I'll be talking about both of those in more detail next week.
Now, for decisions in the courts of appeal...
6th District vacates summary judgment in case where BWC investigators posed as customers to enter home of woman receiving PTD benefits, find that warrant was required... 10th District affirms summary judgment on slip on ice and snow, rejects claim that plaintiff could rely on defendant property owner's clearing ice and snow on previous occasions, distinguishes that from landlord-tenant cases... 9th District affirms summary judgment in attractive nuisance case, says homeowner's locking fence around swimming pool satisfied duty to use reasonable care in protecting children... Landlord had "actual notice" of tenant's new address, thus tenant did not have to provide him with written notice to trigger right to security deposit, says 2nd District...
8th District vacates sentence because judge didn't allow defendant his right of allocution... 1st District reverses grant of speedy trial motion, finding that under Crim.R. 45(A), time doesn't count if last day falls on a Saturday, Sunday, or holiday... 5th District reverses multiple felony convictions for sexual offenses involving children, holding that evidence of prior gross sexual imposition was improperly admitted as other acts evidence... 8th District holds that gross sexual imposition and rape not allied offenses, where defendant touched victim's breasts before penetrating her...
And finally, people, please: don't forget that a motion in limine doesn't mean squat in the court of appeals. Happened again in Columbus v. Thevenin. The defense found out the day before trial that the prosecution was going to call witnesses that weren't on the discovery response, and filed a motion in limine. The trial court overruled the motion on the grounds that defendant hadn't filed a motion to compel discovery. That was bogus; the Supreme Court decided almost twenty years ago, in Lakewood v. Papadelis, 32 OSt3d 1, that a filing of a motion to compel wasn't a prerequisite for sanctions for failure to provide discovery. But the court of appeals still affirmed the conviction. Why? Because after the motion in limine was overruled, defense counsel didn't object to the witnesses testifying.
A few quick notes today; I'm going on vacation at the end of next week, and have some stuff to wrap up before then. First, I was apparently premature in my exultation the other day over the increase in appointed counsel fees. Yes, the County Commissioners did approve an increase of $100 in the maximum fee, making up for the cuts which had been imposed in 2001, and restoring fees to the level that had been set back in the 1970's. But the judges turned it down. That's right, the judges refused to restore the fees. I don't know at this point whether it was all of them or a committee of them or merely the administrative judge, but that's where it stands. I'm going to do some more digging, but this might be something to keep in mind the next time you get a letter inviting you to give $100 to a judicial candidate in return for getting to eat crappy food and having him smile, shake your hand, and pretend that seeing you has been the best thing that's happened to him in weeks.
Speaking of judicial candidates, the betting here is that sometime in the next two weeks the Plain Dealer is going to run a story with the following lead: "In another embarassment to the campaign of judicial candidate Christine Agnello Russo, her former in-laws allege that they have documentary evidence showing she is a spawn of Satan." Film at 11.
As a follow-up to my post of yesterday, I talked to Jim Hardiman, the lawyer who represented Robbie Moore. As I mentioned, the maximum consecutive sentences initially imposed on Moore were reversed by the court of appeals, and the case is back in front of the trial court for resentencing. A sentencing hearing was supposed to have been held last week, but was continued to give each side an opportunity to file a sentencing memorandum. Part of the reversal was based upon the trial court's not giving an adequate explanation for the maximum or consecutive sentences, but Foster takes that out of the picture. The remaining issue is consistency. If the trial court imposes the same sentence, it'll go up again, at which point the court of appeals will have another opportunity to expound upon the issue of consistency in sentencing.
Also, a shout-out to attorney Brian McGraw, who was kind enough to send me a sheet containing a breakdown of appointed counsel fees for all 88 Ohio counties. We'll talk about that next week. Hint: if you're thinking of relocating your practice, Guernsey County might be a nice place to put down roots, but Coshocton, not so much...
And last, good news for all of you lawyers who are working hand in glove with al Qaeda to replace the government of our Founding Fathers with an Islamic caliphate. In an effort to flush out the traitors in our ranks, the Bellefontaine Municipal Court began requiring all attorneys seeking to represent indigent defendants to fill out a form, pursuant to the Ohio Patriot Act, certifying that they do not provide material aid to terrorist organizations. No, I'm not making that up. In a 4-3 per curiam decision, the Supreme Court decided this was a bit much, and issued a writ of prohibition.
Robbie Moore had a bad day on May 20, 2004: she got drunk, wound up going the wrong direction on the Innerbelt, and wiped out a couple on a motorcycle. She had a worse one a month or so later, when she walked into the arraignment room on two counts of aggravated vehiclular homicide, and drew Kathleen Sutula as a judge. Any reason why 2004 wouldn't go down as the worst year of her life was dispelled on September 28, when, after she'd pled guilty to the two counts, Judge Sutula gave her the maximum ten-year sentence on each count, and ran them consecutively.
But Robbie Moore's karma was about to change: a year later the court of appeals reversed her sentence.
Actually, it wasn't good karma -- it was good lawyering. Moore's attorney, who represented her at both the trial and appellate level, filed a presentence memorandum setting out a number of cases involving first offenders who had killed somebody while driving drunk, not one of whom received the maximum sentence, let alone maximum consecutives. In fact, the day before Moore was sentenced, another defendant three floors down in the Justice Center received six years in a virtually identical fact pattern: driving the wrong way, and killing two people. Moore's lawyer argued that the sentencing scheme violated RC 2929.11(B)'s requirement that "a sentence... shall be... consistent with sentences imposed for similar crimes committed by similar offenders."
The court of appeals agreed. This wasn't the first time a sentence had been struck down as inconsistent with that for similar crimes. Back in 2002, the 8th District in State v. Lyons vacated a sentence after concluding that the trial judge hadn't given any consideration to the issue of consistency.
But other than Lyons and Moore, it's tough to find any helpful decisions on this. The problem, as pointed out in Judge Karpinski's concurrence in State v. Haamid: it's almost impossible for lawyers or judges -- aat the trial or appellate level -- to obtain the information necessary to determine how consistent a sentence is with what's been imposed for similar offenses and offenders. When SB 2 was passed, the contemplation was that a database would be established for criminal sentencing. Somehow the legislature forgot to appropriate money for it. Since Ohio no longer faces any other pressing problems, I'm sure the money will be forthcoming any day now, probably coinciding with peace in the Middle East.
Lacking that, you have to get creative, which is what Moore's lawyer did: he contacted a Plain Dealer reporter, who compiled a list of newspaper stories on aggravated vehicular homicides in the Cleveland area in the past several years. (Apparently, the Plain Dealer does have a computerized database.) That's not something you're going to find for your run-of-the-mill drug trafficking case, though. On the other hand, consistency is a great argument to use in the case of sentencing of codefendants, as the 1st District recognized in State v. Stern, 137 OApp3d 110.
At any rate, consistency is one of the things that survived State v. Foster, and it's something to be kept in the back of your mind when approaching sentencing. But, slightly off the topic, any laments about the other things that didn't survive Foster can be tempered by looking at the history of the Haamid case I cited above. The judge originally gave Haamid 15 years for trying to run down some police officers with his car. The 8th District reversed, holding that the judge hadn't given sufficient findings to impose maximum sentences. On remand, the judge gave Haamid the same 15 years, and he appealed again. The court of appeals reversed again, finding this time that although the judge gave sufficient reasons to impose the maximum sentence, she hadn't given a basis for consecutive sentences. On the third try, the judge gave the same sentence. Haamid appealed again, but this time the appellate court decided that the judge got it right.
I think there were some good ideas behind SB 2, but in practice it resulted primarily in a gross waste of judicial resources. If they ever do get around to constructing that database, one of the things I'd like to find out is in what percentage of reversed cases the same sentence was imposed. I'd say the over/under on that was at least 75.
The police get a tip that a person in a "light-colored vehicle" is going to be making a drug sale that night at a particular strip mall. The police stake out the mall, and at 1:30 in the morning observe a gold-colored van pull into the parking lot, drive slowly through it, and exit. The police follow the van, running a computer check on the plates. They pull the van over before the check comes back, and wind up arresting the driver for a susended license. In State v. Porter, the 8th District affirms the trial court's granting of a motion to suppress, finding that at the time the police stopped the vehicle, they didn't have a basis for doing so: even though there were several factors militating toward the validity of the stop -- the late night, the high-crime area -- they hadn't seen the driver doing anything wrong, and hadn't had any corroboration for the anonymous tip.
One more thing: shortly after the police stopped the van, the computer check came back indicating the van was stolen. The defendant was indicted for receiving stolen property. That's the case that wound up getting tossed on the suppression motion.
There's a concept in search and seizure law, which apparently the prosecutor in the case was unaware of, called inevitable discovery: even if the search and seizure was unconstitutional, if the evidence would have been legally discovered anyway, it's admissible. (The late Judge Ann Kilbane had an excellent summary of the doctrine in her dissenting opinion in this case.) This seems like a classic case of that: had the police waited only a few more minutes until the computer check came back, they would have had a perfectly valid reason for stopping the vehicle.
In fact, in State v. Seals, an unreported case out of Lake County in 1999, the court upheld a search on virtually identical facts: the police officer initiated the computer check, then stopped the vehicle. A few minutes later, the check confirmed that the vehicle had been stolen. (Talk about being "on all fours": the case even involved a car being driven through a parking lot at night.) The appellate court disagreed with the trial court that the facts justified the initial stop, but held that the police would have learned that the vehicle was stolen anyway, which would then have justified the stop, and allowed the evidence in under the "inevitable discovery" doctrine.
This isn't to suggest that our Court of Appeals was wrong in failing to raise the issue of inevitable discovery; by not raising it in the trial court, the prosecution had waived the argument. In Seals, by comparison, the prosecution had argued in the trial court both that the stop and search was reasonable, and that if it weren't the inevitable discovery doctrine would apply to validate it nonetheless.
The new site has given me the ability to do some new things, one of which I did here. As I explained a while back, the Ohio Supreme Court site contains most of the court of appeals decisions since 2001, and most of the Supreme Court decisions since 1992. That's what I link to when I cite a decision. The problem is what to do about decisions that aren't there. If they're reported, that's fine, but if they're not, like the Seals case wasn't, that's a pain; if I give you the Lexis site, it's a lot of trouble to find it if you've got Westlaw, and vice versa.
So what I'm doing is converting the files to PDF format and uploading them to my web site, and then linking to that in the posts. Just going the extra mile...
A couple of notes on speedy trial issues....
First, last week in State v. Hull the Ohio Supreme Court held that the speedy trial statute doesn't apply after an appellate court's vacation of a no contest plea. There'd been a contrary holding from our district two years ago in State v. Parker. Even Parker had held that speedy trial didn't apply after reversal of a verdict, so now the law is crystal clear: if you've got a case that came back from the court of appeals, for whatever reason, the only speedy trial rights that apply are constitutional. I'm not entirely comfortable with the decision -- it really doesn't engage in any more analysis than that the legislature didn't mention remands when it passed the statute -- but it's not too far-fetched, either, and it at least has the virtue of clarifying the law.
The other day a lawyer asked me the effect of speedy trial and reindictment, more particularly, whether the time runs during the period between dismissal and reindictment. This is pretty much of a no-brainer: it doesn't. The time under the original indictment is counted, at least when the new indictment is based on the same facts as the original one, and then picks up again when the defendant is arrested or arraigned under the new one, according to State v. Broughton, 62 OSt2d 253.
A couple of caveats to that. First, if the defendant is held in jail or on bail during the interval, the time does count. Speedy trial is calculated when there is a charge pending against the defendant, and if he's in jail or on bail, it's still pending. Second, there's a contrary holding out of the 1st District way back in 1976, in State v. Justice, 49 OApp2d 46, where the state dismissed a DWI case, then refiled, and the court held that the time should be calculated from the original arrest, with no tolling. You can always run that up the flagpole and see who salutes (and hope that the judge and prosecutor don't know any better), but I'm not too fond of citing cases that were decided back during the Ford administration, especially when there's an intervening Supreme Court case that blows you away.
A quick spin around the courts...
9th District holds that defendant who initiates affray has a duty to retreat, even in her own home... Judge's erroneous statement that defendant could raise speedy trial issue on postconviction relief did not invalidate plea, according to 5th District... 9th District says that no contest plea does not preserve claim that judge erroneously denied defendant's motion in limine... 5th District holds that accidental overwriting of arrest videotape did not require granting of defendant's motion to dismiss/in limine; I gave full treatment to this issue a few months back...
Four-inch step on which plaintiff fell at car dealership was "open and obvious" hazard, and fact that plaintiff was engaged in conversation with salesman at time of fall didn't create attendant circumstance, says the 2nd District... 5th District upholds spousal support award of $1,000 a month for 12 years in 30-year marriage where husband is postal worker making $22 an hour and wife recently got job as housekeeper at $7.50 per hour... 8th District rejects mother's motion to relocate children, says she failed to show it was in best interests of the child.
And we'll close with Slip and Fall Cases that You Really Shouldn't Have Taken In, Volume 24: the one where your client falls over a riser in the store and tells the employee, "You know, I slipped on this same riser yesterday. You really should get this fixed."
Have a good weekend.
Cuyahoga County attorneys got good news the other day: the maximum fees they were allowed to receive for appointed criminal cases had been raised. Someone assigned to a drug possession case will get a maximum of $500, up from the current $400. And if you're lucky enough to spend a couple weeks in trial on a nasty rape case, take solace from the fact that your compensation will no longer be a meager $900, but an even grand. Guess you can have the operation now, huh?
The good news is somewhat tempered by the fact that the "raise" merely restored compensation levels to what they were five years ago, when the recession forced the County Commissioners to cut maximums by $50, then another $50. In fact, the compensation levels were "restored" to what they were when they'd been set back in the 1970's. With the cut/raise, defense attorneys in this county have seen their compensation increase exactly 0% in the past thirty years, while the minimum wage has increased 123% during the same time period. Reference to the minimum wage is appropriate; I've had several cases where my actual hourly compensation has worked out to slightly less than what the fry guy at McDonald's makes, and I don't even get to wear the cool paper hat.
A few weeks back I mentioned the case of State of Titsworth, in the context of the question of whether policemen can give expert testimony as to the identity of a drug. Titsworth is interesting for another reason, though. It contains perhaps the single most novel argument I've ever seen for an ineffective assistance of counsel claim:
Defendant argues that he was prejudiced when his trial counsel was not fairly compensated for his time. Specifically, defendant claims that the fee schedule established by Cuyahoga County does not allow any appointed defense attorney to dedicate sufficient time to the defense of any client, including himself.
The court of appeals mulled this over, decided Titsworth was right, and ordered the County Commissioners not only to raise appointed counsel fees, but to provide each attorney with an expense account and private car.
But Titsworth was onto something. Over in Virginia, the bar association and the National Association of Criminal Defense Lawyers are preparing a lawsuit over the state's indigent defense system, which actually is more generous than Cuyahoga County's: lawyers there get $90 an hour. The subject of the grievance, though, is the caps on the system: $1,235 for major felony cases (involving maximum imprisonment over 20 years), and $445 for all other felonies. Back in 2000, New York lawyers actually sued the state, successfully, to increase the appointed counsel fees, which had remained stagnant since the mid-80's.
I've done some research on this, and it appears that the real deciding factor is not the hourly rate, but the caps, the theory being that once the lawyer hits the cap, his decision-making -- like, say, whether to go to trial -- is going to be affected by the fact that he's now doing it for free. We'd all like to think that we're immune to that, but if you've defending someone who's charged with drug possession, and you know he's going to get probation on a plea, it's not too difficult to start selling that as a viable alternative to spending three days in trial for nothing.
The problem there is that Cuyahoga doesn't have a "rigid" cap, again, at least in theory: Local Rule Part II, 33(B) permits counsel to apply for additional fees in "extraordinary" cases. That's what the court used in Titsworth to shoot down the defense argument: additional compensation was available, it's just that trial counsel hadn't applied it. To be sure, this is sort of like saying that the reason I haven't been made a saint is that I've been tardy in getting the paperwork into the Vatican. The wording of the provision, coupled with the mechanism for its execution (it requires the approval of the trial judge, the administrative judge, and one other judge), indicates that nobody should count on funding their retirement plan with what they get for "extraordinary" fees.
Unfortunately, as long as the fees are available in theory, it's going to pose some problem with a lawsuit forcing a more adequate compensation package, a move which rumor has it might be in the works. It might be a good idea to routinely file a motion for extraordinary fees in any case which winds up being tried. The worst they can do is say no, and building a record that that's what they do may help down the road.
Well, that looks a little better, doesn't it? There are some things I need to do, like fixing up the blogging links. I'll explain more about that when I do it. There's also an ATOM/RSS feature, which allows you to get a feed from this site: instead of having to check in, you'll get a summary of the posts in Internet Explorer. Click on the link and do some reading about it if you're interested. I've started getting feeds from various websites, and it's a pretty cool feature. Also, beneath each post, you'll see a couple of icons. The first is a printer; if you click it, you'll be able to print out that particular post. Handy to have for those "Hey, I've got a case on that very thing" situations. The second is an email icon, which allows you to email the post to someone else, which is handy to have for those "Hey, you've got a case on this very thing, don't you" situations.
On to the law. Last week, in State v. Butler, the 8th District handed down a decision affirming the trial court's designation of a defendant as a sexual predator. Butler had been convicted of rape back in 1987, in which he'd stabbed the victim (and has been in prison since then), and he'd had prior convictions, including one for aggravated robbery. What apparently most impressed the appellate court (and the trial court as well) was Butler's scores on the Static-99, a test intended to measure the likelihood of sexual reoffending. Butler graded out at a "39% chance of re-offending in five years, a 45% chance of reoffending in ten years, and a 52% chance of reoffending in fifteen years." That, combined with Butler's record, his diagnosis of anti-social personality, and the details of the crime, was sufficient to uphold the designation.
Butler's scores on the Static 99 weren't off the charts by any means -- I've seen cases where it's as high as 75% -- but it was enough to put him at a "high" risk of reoffending. Does that mean that a low score militates against a sexual predator designation?
Well, as they say in the car rental commercials, "not exactly." In fact, the 8th District has been almost cavalier in dismissing low scores as irrelevant. In State v. Ellison, the Static-99 showed the defendant had a low to moderate risk of reoffending, but the court rejected that as an argument against the defendant's being designated a sexual predator:
The court was not obligated to give the psychological report any great weight. The utility of the STATIC-99 evaluation as a diagnostic tool for individual risk assessment is open to question. The evaluation merely performs an actuarial assessment of an offender's chances of reoffending. While actuarial risk assessments are said to outperform clinical risk assessments, actuarial assessments do not, and cannot, purport to make a prediction of a particular offender's future conduct. In fact, the use of an actuarial assessment could arguably be at odds with Ohio's statutory scheme. RC 2950.01(E) and 2950.09(B) require a determination that the offender is likely to engage in the future in one or more sexually oriented offenses. This is an individualized determination for a particular offender. The STATIC-99 cannot purport to make an individualized assessment of future conduct any more than a life expectancy table can provide a accurate prediction of a particular individual's longevity.
The court was even more dismissive a year later in State v. Hornack, where the defendant's Static-99 scores were 6%, 7%, and 7% in the relevant time periods. Citing Ellison, the court held that "the Static-99 test results are of practically no worth in predicting the risk of sexual recidivism."
That's not to suggest that the Static-99, or any other test, should be determinative. The facts in Hornack and Ellison were egregious, involving sexual abuse of young children, in Hornack's case his own daughter. Still, there should be some consistency in how that evidence is treated. You can't have the courts trumpeting high scores as proof of a likelihood of sexual recidivism, but dismissing low scores as completely irrelevant to the issue.
I was going to title this post, "AT&T Sucks." We got done with our move over the weekend, and if you ever wonder why this country is going to hell in a handbasket, look no further than the phone companies. The Bell monopoly was dismantled a quarter century ago to provide more competition in the telephone industry, but it seems that the only competition between them is which one can outdo the others in gross incompetence and outright fraudulent conduct.
At any rate, time to get back to some blogging. There've been a number of decisions coming out of the courthouse down at Lakeside and Ontario, so we'll start there. I'll take a look at a couple of civil decisions today, and some criminal ones tomorrow. On Thursday, we'll talk about appointed counsel fees, and Friday I'll do a general rundown on some recent decisions of interest.
This decision, Thomas v. Nationwide, is interesting from a number of angles. First, if you do work on questions of auto insurance coverage, you might want to take a look at its discussion of the various procedural requirements for opinions in declaratory judgment actions. It's not enough for the judge to say, "You win"; the trial court's entry must be sufficiently explicit in "construing the documents at issue" to "declare the rights of the parties." The opinion doesn't go very far in explaining exactly what the trial judge should do to meet the specificity requirement, but prior cases suggest that some explanation of why coverage is or is not extended should be sufficient.
The opinion, though, is somewhat disconcerting from a procedural angle. The court dismissed the appeal on the basis that there was no final order, because the trial judge, in granting a directed verdict for the insurance company, hadn't complied with Civil Rule 50(E)'s requirement that "the court shall state the basis for its decision in writing." Citing another decision from three years ago, the Thomas court concludes that the court's failure to do so rendered its decision a non-final order.
But the case from three years ago doesn't support the decision in Thomas; it holds that while a court should make specific findings, the party against whom the verdict is directed waives the issue if he doesn't object at the time.
The net result is that the court finds that the directed verdict for the defendant was improper, but instead of remanding the case back to the lower court to fill in the details, the court simply dismisses the appeal, claiming it's not a final order. What exactly is the plaintiff supposed to do at this point?
On the plus side, though, the court puts another nail into the coffin of arbitration agreements in consumer transactions in Felix v. Ganley Chevrolet. The Felixes had bought a car on the understanding that they'd be given a 0% interest rate, but that the rate was only good that day. They signed the papers, but when they returned to pick up the car, they were told that the GMAC wouldn't approve the rate for less than 1.9%. They signed new papers, only to be informed a month later that GMAC wouldn't give the loan for 1.9%, either, but that they could get one at Huntington for 9.44%. And here I thought all the moral derelicts worked for the phone companies...
At any rate, the trial court rejected Ganley's contention that the Felix's claim had to be submitted to arbitration in accordance with the provisions of the sales contract, and the appeals court affirmed. Judge Gallagher's decision gives an excellent exposition of the law on arbitration provisions, and goes the extra mile in holding that arbitration provisions in consumer contracts are going to receive very close scrutiny. I've done a number of posts on arbitration provisions before -- you can find them just by plugging "arbitration" into the Find box -- and Felix cements my view that this court is going to be extremely reluctant to uphold an arbitration provision in a standard consumer transaction.
A last point. I know some of you are saying, "Gosh, Russ, didn't you tell us that you'd have a new website design up by now?" To which I respond by quoting Ring Lardner from The Young Immigrants:
Are you lost Daddy I arsked tenderly.
Shut up he explained.
Otherwise, good to be back. See you tomorrow.
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