(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.

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.”

Word.

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?