October 2006 Archives
One of the problems in defending a child molestation case is that the indictment will specify twenty or thirty counts, all allegedly occurring between dates that can be months or even years apart. The child will testify that the crimes happened on many occasions, but will have no idea as to specific dates and times.
The difficulties this presents are highlighted in the 8th District's recent decision in State v. Yaacov. The case presented the same sad facts too many of those cases do: persistent sexual abuse of a girl by her father over several years. The problem confronted by the defense was an indictment for 42 counts of rape, 40 counts of gross sexual imposition, and 42 counts of sexual battery, with a date of offense of "April 21, 2001 to January 31, 2004." The problem confronted by appellate counsel was assigning the lack of specificity as error, when trial counsel had failed to object to it or to demand a more specific bill or particulars.
But the appellate court had some problems, too, in affirming the conviction of 122 of the 124 counts. (The trial court had dismissed two of them.) The first obstacle was the US 6th Circuit's opinion in a habeas case last year, Valentine v. Konteh, which is definitely a must-read for attorneys handling these types of cases. In Valentine, the child victim described a typical incident of the sexual abuse she'd undergone, and testified that it happened "fifteen or twenty times," resulting in defendant's conviction of twenty counts each of rape and felonious sexual penetration. The 6th Circuit tossed out all but one conviction of each, holding that such a procedure raised due process concerns about a defendant's double jeopardy rights. One of the requirements for an indictment, as the Supreme Court noted back in 1962, is to make sure everybody knows exactly what the defendant was convicted of, so that he can claim double jeopardy if he's charged with more such offenses over the same time period. If it's not clear exactly what offenses he was convicted of committing, the Valentine court held, he can't do that.
That wasn't a problem, the 8th District decided:
In the instant case, Y.C. was able to recall when, where, and how the abuse occurred. Although she was not able to give specific dates, partly because her diary was missing, she was able to put each incident in a time frame by detailing where it happened, which house they were living in, where she was working when certain incidents occurred, and who employed Yaacov at the various times she was molested.
The second problem was that while the courts grant a great deal of latitude in such cases, as this 8th District case from last year shows, there are limits, as indicated by this 6th District case from 2001: essentially, where
the failure to allege a specific date results in material detriment to the accused's ability to fairly defend himself, as where the accused asserts an alibi or claims that he was indisputably elsewhere during part, but not all, of the interval specified.
That didn't turn out to be too much of a hurdle, either, at least according to the court:
We also find that the failure to allege specific dates did not prejudice Yaacov's ability to defend himself because his defense strategy centered on his claim that he never engaged in sexual conduct with his daughter, regardless of the date or place she alleged the abuse took place.
That contention is hard to square Yaacov's second assignment of error:
Yaacov claims that his counsel was ineffective for failing to file a motion for a more specific bill of particulars or a motion to dismiss because the indictment was not specific. He also claims that his counsel failed to file a notice of alibi and present witnesses who would have shown that he was working as a trucker and was home only sporadically during the three years the abuse occurred.
Obviously, there's some inconsistency in arguing that Yaacov wasn't entitled to more specific information because he wasn't relying on alibi as a defense, then claiming that his lawyer wasn't ineffective in not asking for the information that would have allowed him to present an alibi defense. Still, it's hard to quibble with the result, if only because in this case the prosecution did provide detailed evidence as to the specific incidents.
A guy goes to work as a driver for a trucking company. He's given an employee handbook -- and signs an acknowledgement that he received it -- which provides, among other things, that if he quits with less than two weeks notice he gets paid only minimum wage for the last two weeks he works. He quits on one day notice, the company pays him the minimum for the last two weeks -- some $800 less than he would have gotten -- and he sues.
Oh, one more thing. The very first paragraph in the acknowledgement he signed says, "It is understood that nothing in this Handbook, nor any other Company communication or practice, creates an employment contract of any type."
Should be a no-brainer, right? Well, not to the 3rd District, which held the other week in Kirby v. Elmco Trucking Co. that the provision was enforceable, vacated the judgment of the lower court, and instructed it to calculate the amount of wages Kirby was entitled to receive under the minimum-wage provision.
Sure, Kirby didn't file a brief on appeal, but you shouldn't have to be Louis Brandeis to figure out that a document which explicitly states it's not a contract isn't... well, a contract. Especially since this same court, on at least three occasions in the last six years, has been confronted with a case in which an employee has sued for wrongful discharge based on violation of the terms of an employee handbook, and on each occasion the court has held that the handbook didn't create any contractually enforceable rights.
In other words, when the company wants to let somebody go, the handbook provides no protection to the employee, but when the company wants to job some working stiff out of eight hundred bucks, suddenly it's an enforceable contract.
There's a theory of law called Critical Legal Studies, which basically holds that the law is made by people in power for the primary goal of allowing them to maintain their power. I never bought into that; it always sounded too much like the stuff you'd read in the broadsheets that the scruffy-looking kids from the Spartacus League would hand out down on Coventry in the 1970's.
But then you read decisions like Kirby, and you see the laws that are passed after the lobbyists in the two-thousand-dollar suits get done working their charms in the halls of Congress or the state legislature in Columbus, and there are moments when you think maybe, just maybe, those scruffy-looking kids down on Coventry were on to something.
Several months back, I wrote about the case of Kirchner v. Shooters, where the plaintiff's decedent had gotten drunk at a bar in the flats, decided to relieve himself at the end of a pier, and instead fell into the river and drowned. The court here held that it was an open and obvious hazard, affirmed the grant of summary judgment, then certified it to the Supreme Court. The other day, the Supreme Court dismissed the appeal. Why? Because the appellant had stopped payment on the $40 check for the filing fee.
Me, I think I would have just filed a notice of dismissal and let them keep the forty bucks.
Anyway, on to the courts...
10th District reverses Court of Claims, holds that University of Cincinnati wasn't negligent in student rape case because rape wasn't foreseeable... also applies workers comp "coming and going" rule to find that employee wasn't in course and scope of employment at time of auto accident, and company (and its insurer) thus not liable to plaintiff... 6th District upholds summary judgment in slip and fall on oil slick in parking lot of gas station, finds hazard "open and obvious"...
Defendant's confession was admissible, says 3rd District, because although evidence showed he he refused to sign Miranda waiver, he said that he wanted to talk to officer... 9th District upholds conviction for child endangering based upon woman's allowing her daughter to be abused by woman's boyfriend; court noted that boyfriend "had developed the nickname 'Chester the Molester' among the residents of the trailer park" where the couple lived. Trailer park, huh? Who woulda thought... Failure to call witnesses not ineffective assistance of counsel, rules 12th District, where record doesn't show they would have been any good... 1st District tosses speeding conviction because state never identified laser device which tracked defendant, thus trial court could not take judicial notice of its reliability...
One of the interesting things about doing this blog is I'm always learning things I didn't know. How many times have you had a trial where the jury comes back with the question, "Can we hear the testimony of so-and-so?" Everybody chuckles, the judge shakes his head, sends back a note saying "use your best recollection," and that's that. Turns out that the judge has full discretion to have the testimony of any witness reread to the jury during deliberations. At least that's what the 5th District says, and they seem to have the case law to back it up.
Well, the 25th anniversary went fine. And yes, I was kidding about the multiple marriages. On the other hand, things probably would have gone better had I not leaned across the table at dinner and told My Lovely Bride, "You know, if I'd killed you back then, I'd be out of prison by now."
Ah, the language of love.
I had my own Moment of Duh the other day. I was going to take the 8th District to task on one of its decisions last week, Meeks v. Kramer. It was a hotly contested personal injury case involving whether the accident really was the cause of the plaintiff's injuries. The defendant had hired a doctor to perform an "independent" medical examination, but didn't call the doctor as a witness at trial. The plaintiff, oddly enough, did subpoena in the doctor, but didn't call him either. And then...
During closing argument, Meeks informed the jury that although Dr. Ghanma [the defendant's doctor] was subpoenaed to testify, it could make inferences as to why he was not called as a witness at trial. Meeks' attorney told the jurors that he spoke with Dr. Ghanma in the hallway and questioned him. The attorney was about to inform the jurors as to what Dr. Ghanma told him, but Kramer objected, and the trial court sustained the objection. In lieu of telling the jury what Dr. Ghanma said to him, Meeks' attorney stated that the jurors would not have "wanted to hear" Dr. Ghanma's testimony because it "wasn't honest." At that point, Kramer stated that such argument was "absolutely improper" and the trial court held a sidebar. Following the sidebar, Meeks' attorney was instructed to stop referring to Dr. Ghanma and to move on in his closing argument.
The appellate court agreed that this was improper, but affirmed the verdict, holding that the defendant waived the error by not asking for a curative instruction.
When I first read the decision, I thought that was a harsh result, given the flagrancy of the misconduct by plaintiff's counsel. The failure to ask for a curative instruction was somewhat understandable; counsel often don't ask for a curative instruction in these cases, because it may only serve to highlight the inflammatory remarks. Plus, let's face it, the idea that curative instructions do any good is one of the great Easter Bunny fantasies of the law; as a judge once remarked, you can't throw a skunk into the jury box and then instruct the jurors not to smell it. Indeed, the courts have regularly ruled that a lawyer's failure to ask for a curative instruction is a trial tactic not subject to attack on ineffective assistance grounds.
But then I went back and read the decision, and it highlights one of the real problems of appellate attorneys: failure to protect the record in the trial court. Here's the problem:
Kramer now appeals, arguing that Meeks' reference to Dr. Ghanma during closing argument was grossly prejudicial and that the trial court abused its discretion in failing to correct the prejudicial effect of the reference.(My emphasis.)
It's kind of hard to argue that the trial court erred in not doing something when you didn't ask them to do it.
Does this mean you should always ask for a curative instruction, say, in cases of prosecutorial misconduct in closing argument? Meeks cites a couple of cases for the proposition that you have to, one of which is a Supreme Court case involving the failure to request an instruction to cure improper questioning in cross. You may be able to get away with just requesting a mistrial instead, although to be on the safe side the request for an instruction is the way to go.
Of course, all this sort of glosses over the question I raised earlier: given the inefficiency of curative instructions, is there a purpose to requiring the offended party to request them?
Which brings up another point: while there's a fair amount of empirical research on how juries come to decisions, how they regard concepts like punitive damages, the effectiveness of expert testimony, and other big topics, there's virtually no research on the little things that come up in every trial. Wouldn't it be nice to know whether jurors tended to believe you were trying to hide something when you made an objection? How jurors responded to different styles of cross-examination? Whether curative instructions made any difference?
I've been practicing law for 31 years now. I know how party affiliation is affected by how your parents voted, how economic mobility in America compares to that in Sweden, how health outcomes are affected by income status, and I know how to find the answers to just about any other social, economic, or psychosocial issue. But I don't know the answers to those three questions I posed in the last paragraph, and I'm not sure anybody else does, either.
It's my twenty-fifth wedding anniversary -- sure, I had to go through four wives to get there, but it's still a big deal -- so it's going to be a light day here. We'll check around for some stuff...
Scalia in the News... Again. We'll start with a report about a speech Justice Scalia gave to a panel on the judiciary at the National Italian-American Foundation this past weekend:
Deeply controversial issues such as abortion and suicide rights have nothing to do with the Constitution, and unelected judges too often choose to find new rights at the expense of the democratic process, according to Supreme Court Justice Antonin Scalia.
Scalia, during a panel Saturday on the judiciary sponsored by the National Italian American Foundation, dismissed the idea of judicial independence as an absolute virtue. He noted that dozens of states, since the mid-1800s, have chosen to let citizens elect their judges.
The Demise of Mason & Matlock, LPA. The Boston Bar Association issues a report bemoaning the decline in lawyers' jury trial skills caused by, well... a decline in the number of jury trials. The report cites data to show that in the past several decades, although the number of both criminal and civil case dispositions has increased, the number of dispositions by way of jury trials has decreased, not only as a percentage but in absolute numbers -- in other words, there are fewer trials now even though there are more cases. In the Federal courts, for example, while the number of civil cases disposed of had increased five-fold between 1962 and 2002, the number of cases disposed of by trial in 2002 was one-sixth of what it had been forty years earlier.
Interestingly, there was one type of case which has escaped this phenomenon: the study found that medical malpractice cases were being tried just as frequently as before.
The Ohio Supreme Court has data on case resolution here in Ohio, but the stuff on its web site only goes back to 1999. I'll see if I can find more historical data. In the meantime, here's a question: are fewer trials a bad thing?
A matter of life and death. A while back, I ventured my opinion -- hardly a novel one -- that the death penalty has a distorting effect in the criminal justice system. For example, because of pressure to shorten the period of delay in capital cases between imposition of sentence and execution, there have been substantial modifications in the habeas corpus statutes, yet those changes affect equally, and adversely, people who've been convicted of non-capital crimes. Similarly, rulings are made in capital cases which might not have been made if death wasn't on the table, but those rulings also apply to all other criminal cases.
Another way of looking at it is that the struggle over the death penalty consumes resources that might be better spent elsewhere. For example, if there is a question that someone might have been unfairly sentenced to death, there are teams of investigative reporters willing to look into every nook and cranny of the case. Seventeen people have been freed from Illinois' death row because they were determined to have been innocent; a law professor's class at Northwestern University was primarily responsible for discovering the evidence that freed half of those.
But who's spending the time looking into cases where death isn't the penalty handed out? For example, as this article points out, back in the 1970's Louisiana passed a law mandating life without parole for selling heroin. Despite a change in the law in 2001 which lowered the penalty (to 5 to 50 years) and allowed a review procedure for those sentenced under the old law, there are still 90-some "heroin lifers," many of them elderly, doing time in Louisiana prisons. The prosecution is now arguing on appeal to the state supreme court that trial judges don't have jurisdiction to modify the sentences, but that the lifers must instead go through the time-consuming process of review provided by the prisons board. One of the cases being argued is that of Melvin Smith, who was sentenced in 1977 and is currently wheelchair-bound.
I wonder if the energy spent on the recent debate about whether capital defendants endure some momentary pain during lethal injections might have been better spent in considering the pain and suffering endured by elderly heroin lifers in Louisiana.
Today's Moment of Duh comes courtesy of the plaintiff's decedent in the case of Phillip Morris v. Williams, scheduled to be argued soon before the US Supreme Court:
Jesse Williams rationalized about the dangers of smoking cigarettes for more than 40 years. In part, he trusted the tobacco companies when they said that the link between smoking and lung cancer had not been proved. But when Williams was diagnosed with inoperable lung cancer in 1996, he told his wife Mayola, "Those darn cigarette people finally did it. They were lying all the time."
Williams died, and his widow filed suit against Phillip Morris; in 1999, a jury awarded her $820,000 in compensatory damages and $79.7 million in punitive damages. The Oregon Supreme Court, citing the tobacco companies' lengthy history of "reprehensible conduct," upheld the judgment. Now it's on to the Supreme Court, which a few years back ruled that punitive damage awards have constitutional ramifications. In that case, a doctor was awarded $4 million because of a lousy paint job on his BMW, and the Court threw it out, saying that an award of that magnitude for that minimal an injury violated due process.
I'm not going to get into that. As the article I cited at the top of this post points out, despite the wailing and gnashing of teeth to the contrary by the "tort reform" lobby, awards of punitive damages are extremely infrequent. And I'm certainly not going to shed tears for the tobacco industry, the executives of which should be whiling away their time trying to figure out which particular circle of Dante's Inferno they'll be consigned to upon their demise.
But with all due respect to the Widow Williams, anyone who in 1996 doubted the link between cigarettes and cancer probably believed that the Lung Fairy would come and take his damaged one away and bring him a new one.
See, this is the problem that lawyers have. We know all the arguments. If someone says that punitive damages are a problem, we can point to how infrequent such awards are. When newspapers write articles about the medical malpractice crisis, a few days later there are letters in the forum section from lawyers pointing out that the insurance companies are raising their premiums not because of out-of-control malpractice awards but because of their losses in the stock market. When someone at a party mentions the McDonald's coffee case, a good lawyer can point out the salient facts -- McDonald's had hundreds of prior complaints about how hot its coffee was, the woman was horribly injured, she offered to settle for her medical expenses -- between sips of his Cabernet.
And it doesn't really matter, because we think like lawyers and people think like people, and it's not the same thing any more. Most people know that if you drive with a cup of hot coffee in your lap, it's quite possible for bad things to happen. Most people figured out long before 1996 that cigarettes are bad for you. Most people don't buy the argument that somebody's too addicted to do anything about that, because there are literally tens of millions of people who've decided that they wouldn't smoke any more, and stopped doing it. Most people know that getting up on a ladder can be dangerous, and most people know that sticking your hand in a lawnmower while it's running not only makes you Captain of the Dummy Team, but can cost you several fingers.
Most people, in other words, still retain a concept of personal responsibility. I don't think we, as lawyers, do. In fact, the concept of personal responsiblity has become something close to anathemic for us, because we've spent the better part of the last few decades broadcasting a simple message: if something bad happens to you, (a) it's somebody else's fault, and (b) they should pay you money.
That's the main reason the public has trouble with lawyers. They see us rushing to find new ways to perform modern-day legal alchemy -- turning misery into gold -- by continuing to expand the horizons of liability beyond anything which would have been vaguely recognizable even thirty or forty years ago, and they don't see that as always being good for society.
And you know what? They've got a point.
Last week I discussed State v. Boston and the rule that expert witnesses can't testify as to the veracity of a child claiming sexual abuse, a rule that survives despite a contention in a recent 8th District case that it doesn't apply when the child victim testifies. Boston, of course, doesn't prohibit expert testimony on whether abuse occurred.
This got me to wondering what the experience has been with requesting the trial court to hold a Daubert hearing prior to allowing the experts to testify. Daubert v. Merrell Dow Pharmaceuticals was the 1993 US Supreme Court case which reframed the qualifications necessary for the admissibility of expert testimony under Evid. R. 702. Daubert was approved by the Ohio Supreme Court in Miller v. Bike Athletic Co. in 1998, and basically sets forth these criteria for admission of expert testimony: (1) whether the theory or technique has been tested, (2) whether it has been subjected to peer review, (3) whether there is a known or potential rate of error, and (4) whether the methodology has gained general acceptance.
That's not quite as limiting as it might seem; the test isn't meant to be applied strictly, and in fact it's a relaxation of the long-running Frye test, that to be admissible the expert's view has to have gained "general acceptance in the scientific community."
Still, it's not uncommon for attorneys to request a Daubert hearing in cases involving the more exotic subjects of expert testimony. Indeed, in this case last year from the 11th District, the defense requested, and got, a hearing on the admissibility of a nurse's testimony in a child sex abuse case.
The problems with a diagnosis of sex abuse based upon interviews of a child, the use of anatomic dolls, or upon the child's behavior are well-chronicled, as indicated by Judge Resnick's dissent in State v. Sowers. What's more, as indicated by what happened in this case, social workers and police officers can engage in interrogation techniques that are shockingly prejudicial.
That's not to suggest that the courts are going to grant you a hearing, and there's no case law to indicate that their failure to do so is going to be regarded as error. Still, it doesn't hurt to ask. The worst case scenario is that you're in the same position you were in before, the second worst is that at least you get a free shot at the state's experts, and the best is that you get their testimony thrown out.
Supreme Court upholds a death sentence; significant issue is the judge's partial closure of the trial -- he cleared the courtroom of all but the media for the cross-examination of one witness and the examination of two others. Decision has a good summary of the criteria to be used in determining whether that violates defendant's right to a public trial. Guess which way that one came out? But only by 4-3...
9th District holds that failure of defendant to include presentence report in record on appeal leaves court "no choice but to presume the validity of the trial court's factual findings in support of appellant's sentence"... 8th District holds that numerous acts of false billing committed over a seven-month period, even though contained in a single indictment, does not constitute a single offense for expungement purposes.... Aggravated robbery and theft are not allied offenses, 3rd District rules... 5th District finds that defendant's consent to search wasn't voluntary; good discussion of that issue, and of standard to be used by court in reviewing trial court's ruling...
Great plaintiff's case from the 9th District, reversing trial court's grant of summary judgment in slip-and-fall case, with discussion of attendant circumstances and open and obvious doctrine; I'll have a full article on this next week... 3rd District upholds denial of motion to vacate where opposing expert exaggerated his qualifications, stating that 60(B)(3), allowing judgment to be vacated for fraud, applies only to fraud by opposing party, not witness... There are lawyers out there who still don't realize this? Plaintiff files a complaint, the complaint's dismissed in October, plaintiff file a motion for reconsideration, court denies motion in December, plaintiff then files notice of appeal in January, 5th District dismisses appeal as untimely because -- all together now -- there's no such thing as a motion for reconsideration in the trial court... Although court can set zero bond for preliminary injunction, 6th District rules that failure to include any provision for bond in journal entry renders injunction a nullity, and defendant can't be held in contempt for violating it...
Say this three times real fast. The first line of the 9th District decision mentioned above, on the open and obvious doctrine:
Appellants, Bethel and Robert Marock, appeal the judgment of the Summit County Court of Common Pleas, which granted summary judgment in favor of appellees, Barberton Liedertafel and Liedertafel Damen Skektion Kranken Unterstuetzungs Verein, Inc., on appellants' complaint.
Here's betting that Liedertafel Damen Skektion Kranken Unterstuetzungs Verein, Inc. has never had to worry about tradename infringement.
As I mentioned on Friday, the Supreme Court handed down a decision last week on attorney-client privilege, Jackson v. Greger. It's not a monumental decision -- in fact, it follows previous Court decisions on the subject -- but it's probably something attorneys should be aware of.
The facts are straightforward. Jackson was arrested in 1999 for a resisting arrest, disorderly conduct, and assaulting a police officer, under vaguely bogus circumstances. Her attorney, Greger, worked out a deal where she pled to the first charge in return for the latter two being dropped. Over a year later, Jackson hired a lawyer to pursue a 1983 claim against the city. That went nowhere, though, because the Federal court found that Jackson's guilty plea to the resisting arrest charge collaterally estopped her from challenging her arrest or whether the officers had used excessive force. After the Federal court granted summary judgment against her, she sued Greger, claiming that he'd committed malpractice by recommending that she plead guilty, in light of the fact that she'd told him she'd been injured and wanted to sue the city.
Greger asserted the statute of limitations as a defense. The critical question, of course, was when Jackson had "discovered" Greger's malpractice, and so Greger requested all of the documents concerning communications between Jackson and her current lawyer on that issue. Jackson acknowledged that her communications with Greger were no longer privileged, since she'd sued him, but argued that her communications with her current lawer were privileged.
The court of appeals reversed the trial judge's order compelling the discovery. In doing so, the appellate court applied the common-law test to determine whether a waiver had occurred: "(1) assertion of the privilege was a result of some affirmative act, such as filing suit, by the asserting party; (2) through this affirmative act, the asserting party put the protected information at issue by making it relevant to the case; and (3) application of the privilege would have denied the opposing party access to information vital to his defense." The court held that the second and third prongs hadn't been satisfied.
The Supreme Court affirmed, but on different grounds: it held that application of the common-law test was improper, because the statute, RC 2317.02, provided the only means by which the attorney-client privilege could be waived: by express consent, or by the client testifying as to the communications. (The statute also provides that if the client discloses that he's engaged in sexual abuse of a child, the attorney is required to report it. That's another story in itself.)
As I said, Jackson does little more than restate current law; the Court had expressed pretty much the same ruling over a decade ago in State v. McDermott, where the Court held that a client hadn't waived the privilege by disclosing the conversation with his attorney to a third party.
Still, it may be that Jackson doesn't mean quite all what it says. The statute says nothing about the privilege being waived if the client files a lawsuit against the attorney, but everybody recognizes that as an exception.
There's a principle of constitutional law that a court in making an interpretation of a constitutional provision should do so on the narrowest ground possible. That's really good practice for an appellate court in any kind of case. Too often, a court goes farther than it needed to in making a particular, which only winds up complicating things down the road.
An example of that is the recent 8th District case of State v. Benjamin, where the defendant was alleged to have raped a six-year-old boy. The only real question on appeal was the testimony of a Childrens and Family Services social worker and a psychiatrist. The former testified that her investigation into the matter led her to conclude that sexual abuse was "indicated," and the latter testified that the child used dolls to describe the incident and was "clearly and specifically able to say alone and uncoached the exact nature of what happened to him." The defendant argued that this was expert testimony as to the child's truthfulness, which is prohibited by State v. Boston.
The easiest way to resolve this case was simply to rely on the fact that the case was tried to a judge, rather than a jury, which means there's a presumption that the trial court considered only admissible evidence. The court went farther, though, and held that "unlike in Boston, neither of the expert witnesses in this case testified that the victim was telling the truth."
That's a little iffy: while Boston doesn't prohibit expert testimony as to whether abuse occurred, only as to whether the victim is telling the truth, the psychiatrist's testimony that the child didn't appear to have been coached comes perilously close to violating Boston; the Supreme Court over a decade later in State v. Sowers used as an example of what Boston prohibits testimony that "the child does not appear to be fantasizing or has not been programmed."
Even more problematic was the next sentence in Benjamin:
Here, the child victim testified and was subject to cross-examination. Recent case law states that "Boston does not apply when the child victim actually testifies and is subjected to cross-examination."
The "recent cases" the court refers to are three cases in the past twelve years out of the 5th District. There are a number of problems with the court's reliance on those cases, not the least of which is that the cases don't make much sense. They simply say, "Well, the kids testified here, and they didn't testify in Boston, so Boston doesn't apply," without the slightest attempt to explain why that distinction has any significance. Indeed, back in a case in 2000, the 8th District included a quote from Sowers that "Boston's syllabus excludes expert testimony offering an opinion as to the truth of the child's statements." And Sowers case couldn't be distinguished on the basis that the victims hadn't testified; all four of the child victims did.
In fairness, part of the problem here stems from Boston itself: the distinction between allowing an expert witness to testify, "I concluded that the victim had been sexually abused," which Boston permits, and "I concluded that the victim was telling the truth when he said that he'd been sexually abused," which it prohibits, isn't immediately apparent. And, as Justice Resnick pointed out in her dissent in Sowers, there is a paucity of empirical evidence to show that the criteria used by experts in diagnosing sexual abuse accurately does any such thing.
Still, the courts have been consistently unwilling to allow expert or lay testimony on veracity of other witnesses, and there's no logical explanation -- at least not given by the 8th District here, or by the 5th District in its cases -- why that unwillingness should depend upon whether or not the witness testified. The problem with Benjamin is that it's not too hard to imagine an enterprising prosecutor waving the opinion around to convince a trial judge that, because the victim in that particular case testified, Boston doesn't apply and thus testimony on whether the kid is telling the truth is permissible. And then somebody has to decide whether that's a mess, and how to clean it up.
As a side note, apparently no one was aware of the meaninglessness of a C&FS determination that child abuse is "indicated." The agency has three designations: "substantiated," "unsubstantiated," and "indicated." Roughly, these translate to "yes, we know it happened," "yes, we know it didn't happen," and "we have no friggin' idea," respectively. Seriously. "Indicated," in the agency's parlance, means simply that someone has made a complaint of child abuse, and they can't determine one way or the other whether it's true.
There are some things about State v. Colon, decided on Thursday, that I don't care for, the major one being the holding that allowing the defendant to consult with his attorney during trial only in the courtroom, with the deputies present, was not a violation of his right to counsel. To be sure, the trial court's order was based on previous rather loud disputes between defendant and counsel, but I'm not sure the record supported the court's decision, and probably warranted more than the brief attention the appellate court gave it.
On the plus side, though, there's some good stuff on sentencing. A couple of months back, I'd suggested that Foster didn't give judges unfettered discretion in sentencing: they still had to comply with the provisions of the code which dealt with recidivism and seriousness factors, along with the overriding purposes of felony sentencing. That view is emphasized in Colon. The defendant, who'd never been in prison before, was given a seven-year sentence (out of an eight-year maximum) for felonious assault. The court vacated the sentence because of the Foster decision, and decided that an attack on Foster's ex post facto application, something we discussed yesterday, wasn't ripe for review, but also noted,
In resentencing appellant, the trial court may want to keep in mind the Ohio Supreme Court's holding in State v. Mathis, 109 Ohio St.3d 54"Although after Foster, the trial court is no longer compelled to make findings and give reasons at the sentencing hearing, *** nevertheless, in exercising its discretion the court must carefully consider the statutes that apply to every felony case. Those include R.C. 2929.11, which specifies the purpose of sentencing, and R.C. 2929.12, which provides guidance in considering the factors relating to the seriousness of the offense and recidivism of the offender. In addition, the sentencing court must be guided by the statutes that are specific to the case itself."
That's some language you might want to include in sentencing memoranda.
The court upheld the granting of a motion to suppress in State v. Paschal, but it's a stretch. A cop had spotted two men sitting in a car late at night in the proverbial high crime area, looking at something between them. The officer, finding this "odd," pulled up next to them, and they appeared surprised. He pulled forward, intending to turn around in the driveway and come back, when the passenger took off running, and the driver sped away. The officer caught up with the driver, and a subsequent search turned up a rock of cocaine.
The court affirmed the suppression, deciding that while prior case law holds that unprovoked flight in a high-crime area can create reasonable suspicion for a stop, those cases required immediate flight, which wasn't present in this case. Judge Corrigan's dissent is probably correct in noting that the majority is wrong on both these points: the prior case law did not require a "temporal nexus" between the sighting of the police car and flight, and even if it did, the time lag here was no more than a few seconds.
Finally, State v. Talley expounds on a number of legal issues, including the general rule that self-defense and accident are inconsistent defenses, and that an instruction on flight can't include a provision stating that flight shows consciousness of guilt "unless the flight was satisfactorily explained." It also contains this great line from the trial court, in answer to defendant's claim that his attorney was a racist: "If he gives you some legal advice that you might not like, that doesn't make him a racist, it just makes him a lawyer."
It's going to be a light work week here. I've got a brief due next week on an intentional tort silicosis case, and in two weeks I've got a brief due on a murder appeal, with a seven-volume transcript that I haven't even looked at. I was hoping it'd come out on video, but I guess that's not to be. Anyway...
The Supreme Court is hearing arguments this week on an interesting case out of the 3rd District, State v. Buzzard. While investigating a burglary, the police observed tire tracks in the dew, and followed them to Buzzard's garage. The garage had no windows and was double-locked, but by looking through a quarter-inch space between the door and the jamb, the victim of the burglary, who was with the officer, was able to see some items that looked like what had been stolen. (The victim testified that the officer pulled the door so he could look through the crack, but the officer denied that.) The officer then got a warrant, and you know the rest of the tune.
The appellate court reversed the denial of the motion to suppress, holding that Buzzard had a reasonable expectation of privacy in the garage, which the police had violated by looking through the crack. The court held this wasn't similar to a police officer simply observing something through a window. (The garage didn't have any, which, according to the court, further confirmed the expectancy of privacy.)
It's a good argument, although I'm not sure the Supreme Court will buy it. It's an important issue, though; too often, in analyzing search and seizure cases, the courts tend to overlook key concepts such as privacy and instead rummage through the law books to see if the same factual issues were presented in a previous case. We'll see what happens with this one.
As I mentioned on Friday, a number of cases are coming through the courts now, arguing that the Supreme Court's decision in State v. Foster, which struck down a good part of Ohio's sentencing law, cannot be applied retroactively; one of the cases can be found here.
The short version is that the sentencing scheme contained numerous presumptions, all of which were beneficial to defendants. (An argument that I made back in one of my first posts on this blog.) For example, before Foster a defendant who had never been in prison before was entitled to a presumption that he should be given only the minimum sentence. Foster, of course, wiped that out: such a defendant is no longer entitled to the presumption, and the trial judge can give him any sentence up to the maximum, without having to make the findings that were required to overcome the presumption. Hence, Foster can't be applied to any crimes committed before it was decided, and a defendant is still entitled to be sentenced under pre-Foster law.
Good luck with that. Although there are circumstances in which a judicial decision can create an ex post facto effect, just like a law can, the courts aren't buying the argument so far. The case I cited earlier (and I'll cite it again here so you don't have to overexert yourself using the scroll bar) contains an excellent discussion of the constitutional issues.
Last, I ran across this account of a disciplinary hearing against a New York judge:
Judge William A. Carter of Albany County, N.Y., allegedly removed his glasses, threw off his robe and approached an agitated pro se defendant, saying, "You want a piece of me?"
Carter also got in trouble for the following exchange:
The second incident came four months later, when an Albany police officer complained that Carter failed to address a defendant's obscene gesture in the courtroom. Carter reportedly replied, "If you are so upset about it, why don't you just thump the shit [out] of him outside the courthouse because I am not going to do anything about it."
Carter was censured by the disciplinary committee.
I don't know about you, but I can think of one particular common pleas judge who might have engaged in the first activity.
The Supreme Court holds that the judge's saying during sentencing that post-release controls are optional, when they're actually mandatory, doesn't entitle defendant to habeas corpus relief. The Court also came down with a decision on Wednesday on attorney-client privilege; I'll have something on that next week.
9th District holds that trial court erred in including children's accounts, established under Uniform Gift to Minors Act, as marital property and dividing it... Appeal from administrative decision requires filing of appeal with agency as well as with court; plaintiff cannot rely on clerk of courts to serve agency, concludes 10th District... Motion for relief from judgment for cognovit note does not require grounds under 60(B)(1) through (5), only timeliness and meritorious defense, holds the 1st District... 8th District rules to same effect, but holds that set-off cannot be used as defense to cognovit note...
This 3rd District decision one of a number in past week holding that sentencing under Foster doesn't violate ex post facto law prohibition; I'll have more on this next week, too... 10th District holds that trial court has discretion to refer defendant for competency evaluation even after trial begins... 8th District holds that validation sticker isn't a license plate, defendant cannot be convicted of felony receiving stolen property for former... Lengthy discussion of totality of circumstances test in DWI cases in this 10th District decision, which concludes that court erred in considering each factor in isolation...
And in the category of "You Don't Know How Good You've Got It," this is the 2nd assignment of error in the 9th District's decision last week in State v. Carswell:
"THE SUMMIT COUNTY PROSECUTORS [SIC] OFFICE'S POLICY OF 'OPEN FILE DISCOVERY' IS UNDULY PREJUDICIAL AND IN VIOLATION OF OHIO RULE OF CRIMINAL PROCEDURE."
Practice criminal law about 30 miles north for a couple of months, and then cry me a river.
I've devoted more than a few electrons in the past few weeks to the subject of appointed counsel fees -- you can read through them here -- suggesting the possibility of court action to correct the paltry compensation awarded to lawyers tasked with representing indigents, and lo and behold: out of the Second District comes State v. Sells, a case on that very subject. Sells was charged with aggravated murder with a death penalty specification, which was dismissed by the state just prior to trial. Sells was found guilty, and the two lawyers who'd been appointed to represent him then filed an application for extraordinary fees, claiming that they'd spent 800 hours on the case, or substantially more than Miami County's cap of $20,000 for capital cases. The court of appeals didn't buy it.
Which isn't at all surprising, considering the argument the lawyers raised. They didn't argue that paying attorneys hourly fees that would have been regarded as penurious during the Ford administration might have some impact upon the quality of that representation, and thus potentially deny defendant's the right to effective representation of counsel. No, what they argued was that not paying them an adequate fee representated an "government taking without just compensation," in violation of the 5th Amendment's taking clause.
If your IQ is above room temperature, you can probably spot the flaw in that argument. It would be one thing if they'd tried to turn down the appointment, and the court had refused to let them off the case. That didn't happen here. So how can they claim that the government "took" something which they voluntarily gave?
Unfortunately for the two lawyers, the appellate panel did have an IQ above room temperature, and quickly shot down their argument, citing numerous cases to the same effect, including the ones where doctors had made the same claim with regard to Medicare fees, and the courts replied, "Well, then don't sign up to take Medicare patients." And yes, speaking of doctors, this does bear more than a little resemblance to the old joke: Guy goes into a doctor, says, "Doc, it hurts when I do this." Doc says, "So don't do that." Badda bing, badda boom.
What was interesting about the case, though, is that the panel went on to address the 6th Amendment argument about low fees resulting in ineffective assistance of counsel:
In our view, however, whether a fee cap may operate to deprive a particular indigent defendant of his Sixth Amendment right to the effective assistance of counsel presents a different question than whether the cap deprives an attorney who voluntarily agrees to accept an appointment thereunder of his property within the meaning of the Fifth and Fourteenth Amendments. If the existence of a fee cap results in a given defendant being unable to obtain effective representation, then he may have a valid Sixth Amendment argument. It does not follow, however, that an attorney who voluntarily agrees to accept a criminal appointment subject to a fee cap also has a viable takings claim. Whereas the fee cap at least theoretically could deprive an indigent defendant of his Sixth Amendment rights, it cannot deprive an attorney who volunteers for appointment of his Fifth Amendment right to just compensation because, as explained above, government compulsion is lacking. Moreover, there is no evidence or argument in this case that the existence of Miami County's fee schedule operated to deprive the appellants' client of his Sixth Amendment right to the effective assistance of counsel.
That last sentence suggests one of the problems in doing the basis of a "direct appeal" -- i.e., an appeal from a denial of extraordinary fees -- as opposed to a civil suit: your chances of being able to build a record are much greater in the latter than the former. Plus, I think you're better off doing it in Federal court, for reasons which should be obvious to.... well, see "room temperature" comment above.
No, the title of this post isn't an oxymoron. It's part of SB 17, and took effect at the beginning of August. The law was initially intended to broaden the statutes of limitations for childhood sexual abuse, and it certainly does that: the act creates a 12-year statute of limitations for "childhood sexual abuse," which doesn't begin to run until the victim reaches the age of majority, and is tolled as long as the perpetrator has "fraudulently concealed facts that form the basis of the claim." The act also increases the statute of limitation for criminal actions involving neglect or abuse of a child (which goes well behind sexual abuse): the statute doesn't begin to run until the victim reaches age 18, unless an agency or the police have been notified that the abuse occurred.
Had that been all the legislature did, the bill would have been unremarkable. But making laws is a lot like eating potato chips: once you get started, it's hard to stop. And the legislature didn't stop until it had added a few rather disturbing embellishments.
The first was to expand the role of civil protective orders under RC 3113.31 to include the commission of a "sexually oriented offense" as a grounds for seeking an order. While the standard CPO can only be filed against a family or household member, a petition seeking a CPO for a sexually oriented offense can be filed against anyone. The same procedure applies: the obtaining of an ex parte order, and the full hearing within ten days after that.
This just doesn't make much sense. Civil protection orders exist because there are situations where emergency relief is needed. It's hard to see how sexual abuse could create that type of situation, especially where the abuser is not a household or family member. What's more, whatever arguments might be made with regard to police responsiveness to claims of domestic violence, they don't apply to claims of sexual abuse: if you suspect that hubby is molesting the children, dropping a dime on him to the police is going to get him out of the house a lot faster than filing any petition will. Given that the Supreme Court has held that the quantum of proof necessary for issuance of a CPO is only a preponderance of the evidence, this poses a substantial potential for abuse, and I'm not talking about sexual abuse.
Even more disturbing is the provision for having someone declared a sex offender in a civil proceeding. Under RC 2721.21, if you claim that you've been the victim of childhood sexual abuse, but the statute of limitations has expired on your claim, you can ask the attorney general or the county prosecutor to file a petition against the person who allegedly abused you. If they don't do it within a certain time (45 days for the prosecutor, 90 for the AG), you can do it yourself. What could happen next sounds like something Orwell could have written:
If the court finds by a preponderance of the evidence in an action brought pursuant to this section that the defendant would be liable for assault or battery based on childhood sexual abuse but for the expiration of the limitation period. . . , the court shall enter a judgment with that finding against the defendant and shall order that the defendant be listed on the civil registry maintained by the attorney general pursuant to section 3797.08 of the Revised Code.
As you might have guessed, getting put on the civil registry of declared sexual offenders is not among the methods Dale Carnegie suggested you use to influence people. RC 3797.08 requires the Attorney General to establish an internet site allowing people to find out who's registered as a sex offender; while the AG gets to decide what information is included, at a minimum that will be "the name, current residential and employment addresses, and photograph of the registrant."
I don't think you're going to find many people who are unsympathetic to the plight of victims of childhood sexual abuse, but this makes even less sense than the expanded CPO. The entire purpose for having a statute of limitations is because of the concern that using stale evidence significantly increases the possibility of error in the fact-finding process. What this provision essentially does is eliminate the statute of limitations: someone claiming to be a victim can bring a claim at any time, and it will be heard in the exact same fashion as if the limitations period hadn't expired. Rather than simply having a judgment taken against you, you're now listed on an internet registry of sex offenders, essentially indistinguishable from those who are required to register because they've been found guilty of a crime. In other words, what the law is saying is that stale evidence isn't reliable enough to justify imposing a civil judgment, but it is reliable enough to justify placing someone on a registry of sex offenders.
And all of this, of course, based upon a mere preponderance of the evidence. Up to this point, to be required to register as a sex offender, a person had to be convicted of a sexually-oriented offense, which requires proof beyond a reasonable doubt, or designated as a sexual predator, which requires clear and convincing evidence.
There should be some interesting litigation over these new provision. And I wouldn't be at all surprised, depending upon the election returns in a month, to see the legislature amend the law to provide that those who've had a CPO issued against them for a sexually oriented offense are to be added to the civil registry of sex offenders.
You're up against the statute of limitations, and, despite your best efforts, you're not sure you've got all the defendants. Hey, no problem, right? After all, that's what John Doe defendants are for: you name the defendants you know, stick a few John Does in the caption, and when you find out who they are, you amend the complaint to include them, and it all relates back to the time of filing of the original complaint. What could be simpler?
Be afraid. Be very afraid.
The perils of using this procedure were on vivid display again in the 12th District's recent decision in Lawson v. Holmes. The plaintiff had been injured in a tow-motor accident, but because counsel hadn't been able to determine the identity of the manufacturer, he used a John Doe defendant when he filed the complaint on the day before the statute ran.
Now, if you do that right, when you determine John Doe's identity, you can file an amended complaint naming him, and under Civil Rule 15(C) it relates back to the date you filed the complaint. The converse of that is true, too: if you screw it up, it doesn't. How did the plaintiff screw up? By not stating in the original complaint, or the amended one, that he hadn't been able to discover the real name of the defendant.
The problem here actually dates back to a 1989 case, Amerine v. Haughton Elevator Co., where the Ohio Supreme Court found that the plaintiff's attempt to add a John Doe defendant failed because service of the amended complaint was done by certified mail, rather than personally; Rule 15(D) clearly requires the latter:
When the plaintiff does not know the name of a defendant, that defendant may be designated in a pleading or proceeding by any name and description. When the name is discovered, the pleading or proceeding must be amended accordingly. The plaintiff, in such case, must aver in the complaint the fact that he could not discover the name. The summons must contain the words "name unknown," and a copy thereof must be served personally upon the defendant.
Ever since then, courts of appeals have had a field day looking through the entrails of the rule to detect any failure, no matter how inconsequential, to adhere to its terms. If you don't include language stating that you couldn't discover the names of the John Doe defendants in the original complaint, you're out of luck. (Although there's a 1990 8th District case contra.) Ditto, if you don't serve the newly-named defendant with a summons for the original complaint. Ditto, if you do serve the newly-named defendant with a summons for the original complaint, but don't put "name unknown" on it.
This slavish devotion to form, which evokes comparisons to demurrer practice in Colonial times, seems to run contrary to the general spirit of liberality in applying the rules. Lawson's defense of this, that strict compliance is required because the legislature hasn't evinced a desire to loosen the restrictions of the statutes of limitations, hardly addresses the point: the rules are a creature of the courts, not the legislature. Still, as popular but meaningless phrases go, the expression "it is what it is" applies here as much as it does to most human endeavor, so deal with it. You can minimize the chances of running afoul of 15(D) if you follow this checklist each time you sue a John Doe defendant:
- Put "name and address unknown" after each John Doe in the caption of the original complaint
- In the body of the complaint, for each John Doe, state "John Doe No. X, whose name and address are unknown and could not be discovered through reasonable effort"
- When you find out the name, move to amend the complaint to include the name, stating in the motion that you could not discover the name previously
- In the body of the amended complaint, identify the new defendants; attach a copy of that to the motion to amend
- After the court grants you leave to amend, file a motion with the court asking for a process server to be appointed to serve the original and amended complaints on the new defendant
- Have the clerk prepare a summons for the original complaint, stating "John Doe, name and address unknown" as the defendant. Also have the clerk prepare a regular summons for the amended complaint
- Have your process server serve the original and amended compaints, with the summons for each, on the new defendant by personal service
I might have missed something; there may be a case out there saying that the process server can't be named Bob, that he has to serve it on a Tuesday or Thursday, and that when he hands it to the defendant, he has to say, "Mother, may I?"
Oh, one other thing: keep in mind that the requirement that you obtain service within one year after filing in order for the action to be considered commenced applies to John Doe defendants as well. That means you only have a year to get service on them.
A final tidbit about my vacation: on the last night we were in Vegas, we went to a sports bar we'd been to before, because they have great pizza. We had to sit outside on the patio, because they had a sign on the door, "filming in progress." I asked them what they were filming, and they told me it was a reality show. I guess the subtle irony of filming a reality show in Las Vegas hadn't occurred to them.
If you've got a criminal case where your client has been convicted of the same or similar crime before, and you've got to put him on the stand, the 8th District's recent decision in State v. Durham is a must read. Durham was charged with felonious assault as the result of an employment-related fight with a guy named Krug; although Krug got the worst of it, which of the two was the aggressor was hotly contested. To raise self-defense, of course, Durham had to testify, and he brought some baggage to the stand with him: he'd been convicted of felonious assault back in 1992, and he'd been charged with it again in a case in which his sister was the alleged victim, although that case had been dismissed.
His sister, who worked for him at this time, was also a defense witness to the assault. The prosecutor spent almost half the cross-examination of her exploring the felonious assault charge in which she'd been the alleged victim. This was completely over the top. The state argued first that it was entitled to pursue the questioning to show that the sister had a financial interest in the outcome of the trial. That made as much sense when you just read it as it did when I wrote it and when the prosecutor said it, and the court of appeals wasn't buying.
Alternatively, the state argued that it was entitled to pursue that line of questioning to impeach defendant's character, a contention that was made problematic by the fact that the defendant had never placed his character in issue. The trial court recognized as much, but then compounded the travesty by ruling that the evidence was admissible to impeach the sister's credibility. Even more bewilderingly, when defense counsel tried to argue in summation that the felonious assault charge didn't prove defendant's guilt in this case, the court sustained the prosecutor's objection.
The trial court was similarly helpful when the state attempted to explore the 1992 conviction, which Durham had acknowledged when he testified on direct. The prosecutor explained his reasons for doing so:
Your Honor, counsel opened the door to this line of questioning by, first, calling this witness to the stand. Second I asked him about his criminal conviction for felonious assault. I'm only going into the nature of the situation. It may show a pattern of criminal activity. [Emphasis here and later is in the appellate court opinion].
The contention that a defendant opens to door to cross-examination of every detail of his past criminal convictions is, of course, nonsense; prior court cases, like this one and this one, have held that, when inquiring as to past convictions for impeachment purposes, the court has discretion to limit the questioning to the name of the offense, the date of conviction, and the punishment. And the contention that it might be 404(B) evidence was similarly absurd; there was no question of identity, motive, or the other factors that permit evidence of prior crimes to be introduced.
Once more, though, the trial court attempted to bail the prosecutor out; as the appeals court noted,
Obviously recognizing the impropriety of the prosecutor's arguments, the trial court came to his rescue, citing its own recollection, albeit a mistaken one, that defendant testified on direct examination that "he didn't have a problem with anyone ever before." When defense counsel countered that defendant was speaking about the day in question, and had, in fact, admitted his prior conviction on direct, the court responded, "I don't know what he was talking about. I know what he said. Okay. Your objection is overruled."
The prosecutor was then allowed to question defendant about the details of his prior assault conviction, eliciting from defendant that there were two counts of assault, two victims, and that he had hit both his ex-girlfriend and her boyfriend. Notably, when the defendant tried to explain his actions, asserting "[i]t was just a fight," the prosecutor once again emphasized the similarities between his prior conviction and the current charge, asking, "A fight like this fight?"
Obviously, what the prosecutor attempted to do, and what the trial court let him get away with, was use the prior conviction to prove the present offense. There's a danger of that happening any time the prior offense is similar to the one the defendant is charged with; most of the time, that fact alone will make the decision not to put the defendant on the stand a no-brainer. When you're asserting self-defense, as Durham was, that's not an option.
Credit goes to the court of appeals for recognizing this, but don't get too carried away by the decision. As indicated above, it's abundantly clear that Durham didn't get a fair trial. (To compound its errors in the introduction of evidence, the trial court also instructed the jury on the lethal definition of self-defense -- i.e., that the defendant is entitled to use force only if he is in danger of death or great bodily harm -- rather than the non-lethal one, which was required under these circumstances.) And, as the cases above note, while the court has discretion to limit the questioning on prior convictions to date, crime, and punishment, it doesn't necessarily follow that it's an abuse of discretion to allow more than that.
Still, if you've got a case like this, putting together a motion in limine with a copy of Durham might make things go a bit smoother during trial.
I'll have some interesting stuff in the next few days. (Yeah, like I'm going to tell you, "Reading this blog this week will be as fascinating as studying the arc of Jessica Simpson's acting career.") Tomorrow, I'll look at a recent case which affirms why it might be a good idea to put your carrier on notice any time you sue a John Doe defendant. On Wednesday, we'll talk about how to get someone put on Ohio's civil registry of sex offenders -- betcha didn't know we had one, right? And on Thursday, we'll take a look at a recent court of appeals opinion on something dear to my heart: whether appointed criminal defense attorneys are underpaid.
And I promise: no more vacation stories.
Well, I haven't done one of these in three weeks, and according to my good bud Lexis, there have been 403 cases handed down by the Ohio courts since I did the last one. So, having read every word of every one of them -- wink wink -- let's get to it.
RC 2305.17 says that an action is commenced if a plaintiff files the complaint "together with a praecipe demanding that summons issue" within the limitations period. He files the complaint a few days before the statute runs, but tells the clerk not to serve it -- he's not sure which of the two named doctors is the proper defendant. Has he properly "commenced" the action? Yes, says the Supreme Court, holding that Civil Rule 3(A) doesn't require the filing of a precipe, and the civil rule takes precedence over the statute. The Supreme Court does chide the clerk for not filing the complaint, which will probably put the kibosh to the somewhat common practice of lawyers telling clerks that they don't want the complaint served, because they want to negotiate with the insurance company some more, or whatever. As the Court notes, Rule 4(A) requires the clerk to serve the complaint "forthwith," which doesn't mean "when the plaintiff's lawyer wants me to."
Now, to the courts of appeals...
3rd District says that trial court didn't abuse discretion in denying defendant's motion to terminate child support just because he was in prison (the defendant, not the trial court)... 12th District affirms award of custody to grandparents after children found dependent, says that "best interest of child" is standard and it's not necessary for trial court to find mother unsuitable; contrast this with the case I discussed the other day, just argued in the Supreme Court, where the 1st District held that the parent's paramount right to custody negates the statutory requirement that a court find a change of circumstances before modifying an award of custody to a non-parent... 11th District reverses denial of prejudgment interest... Also holds that while "haunted hayride" on Halloween is a governmental function -- no, I'm not making that up -- sovereign immunity doesn't apply...
3rd District affirms involuntary manslaughter conviction for defendant who provided drugs on which victim overdosed... 9th District holds that arrest outside officer's jurisdiction isn't a constitutional violation, doesn't require suppression... Bad decision out of the 6th District upholding the shackling of a defendant at trial; read the concurring opinion (the evidence of guilt was overwhelming) for excellent discussion of when this is permitted; the 10th District's decision here covers the same subject... Although defendant doesn't have right to appointed counsel in minor misdemeanor case, he has right to counsel, and 5th District reverses conviction where defendant was not advised of such... 10th District finds that trial court's permitting detective to testify that defendant refused to meet with him was inadmissible evidence of post-Miranda silence; even state concedes error...
I've been back a week now, and haven't said anything about my vacation, because, as you might have noticed, I don't really regard this site as a place to expound on my personal experiences, for the basic reason that they're not terribly interesting to me, so I can't see how they would be to anybody else. I'll deviate from that for couple of points, though. We spent three days in Las Vegas, and then drove up to Bryce Canyon for four days. If you truly want to experience the yin and yang of life, do something like that; I have a hard time imagining two more disparate places. Three days in Vegas is about my limit anyway, and should be yours, too, unless you've got a serious gambling jones or a fascination for gazing at middle-aged women who've had breast implants.
As for Bryce Canyon, it's a lovely little place -- here's a picture -- and it doesn't have the visitors a lot of parks do. If I'm going to go to a place like that, I like a little solitude. I've found that I've become much more appreciative of nature as I've gotten older, pretty much coinciding with my realization of how badly we're screwing up the planet. There was a plaque at Bryce which contained a quote from Lyndon Johnson, of all people, saying about how we had an obligation to let our children see the land as it was created, not as we left it. Fat chance.
There are actually people who advocate drilling for oil in the national parks. They should be beaten with sticks.
Have a good weekend.
I'd mentioned that an attorney had furnished me with a county-by-county breakdown of the appointed counsel fees for indigent defendants. The sheet I have gives the fee maximums for capital, felony, and misdemeanor cases, as well as the out-of-court and in-court rates.
If criminal law is your interest, you'd best stay out of Coshocton County: they pay a maximum of $3,000 for a capital case. Only a half-dozen pay less than $10,000 for one, and almost a quarter of the counties pay $50,000 or more. Montgomery and Wyandot pay up to $75,000. Cuyahoga County is at $25,000; only 11 counties pay less. You might note that the maximum fee in Wyandot is arguably hypothetical; I've been able to find one death penalty case out of there in the last 15 years.
Cuyahoga County is at the back of the pack for regular felonies, as well; it pays a maximum of $900 for a 1st or 2nd degree felony. (It pays a maximum of $400 for 3rd, 4th, and 5th degree felonies; the sheet, unfortunately, doesn't make those distinctions.) There are only 7 counties which pay less. The worst are Pickaway and Seneca, which pay a measly $500.
Another way of looking at it is to examine how we fare, compared to the other major urban counties in Ohio: Mahoning (Youngstown), Franklin (Columbus), Hamilton (Cincinnati), Montgomery (Dayton) and Lucas (Toledo).
The caps are only part of the story, of course; there's also the question of hourly fees, which range from a high of $50 per hour for out-of-court and $60 for in-court, to a low of $35 and $40, respectively. (There are only two counties which have separate billing rates for capital cases: Lucas and Montgomery.) Cuyahoga County's in the median there, at $40 and $50. This makes the cap for capital cases largely irrelevant: in order to max out, an attorney would have to spend 500 hours on the case (assuming every hour was billed as in-court), which is roughly a quarter of what an associate of a big firm is expected to bill in a year.
But the caps do come in to play in regular felony cases, especially when they're low, as they are in Cuyahoga County: essentially, they mean that anytime an appointed lawyer takes a case to trial, he's doing it for free.
A few weeks back I mentioned that, although the County Commissioners had approved an increase in the caps for appointed counsel fees, the increase was nixed by the court's judges. (And keep in mind this wasn't really an "increase," but merely a restoration to what the fees were in 2001, and what they've been since the mid-1970's.) I mentioned at the time that I didn't know whether it was all the judges, a panel, or simply the administrative judge. A couple of judges since then have mentioned that they had no idea this had happened.
There's really no excuse for expecting a competent defense attorney to spend a week trying a rape case for $900. As I noted before, there have been numerous lawsuits against counties and even states for inadequate funding of the indigent counsel system. It could happen here, too.
I may have been on vacation, but the gang down at the courthouse on Lakeside wasn't. There've been some recent decisions of interest. I'll look at a couple of civil ones this week, and some criminal ones next.
If you practice domestic relations law, you probably know about the local rule that says your client must have gone to the parenting seminar before he or she can be awarded custody of the kids. That's not just chin music, as the court declares in Barry v. Barry, voiding an award of custody to the husband because he'd failed to take the seminar in the two years that the case was pending.
Even more interesting is the how the court handled visitation. The court psychologist, appropriately named Dr. Lovinger, recommended against shared parenting, finding that "while I would not want the children to spend less or more time with either parent," the wife's tendency toward histrionics made joint decision-making impossible. The court seized on this statement to determine that the trial judge erred in granting standard visitation instead of equal parenting time. That seems to be a fairly slender reed upon which to conclude that nothing less than equal time will do, and one comes away from reading the opinion with the belief that the court might have been more acquiescent in the outcome if the trial judge had appeared to actually give some thought to visitation, and hadn't made such a hash of the rest of the case. (He was also reversed for awarding the husband attorney fees -- both parties made about $60,000 a year -- for giving the husband 100% of his retirement and 50% of the wife's, and for ordering the wife to pay 93% of the parties' business debts.)
On the purely civil side, something to keep in mind the next time you've got a client who has been rudely and roughly expelled from one of the local taverns: while claims against bars and their "security personnel" have become de rigeur ("Tonight on Fox: 'When Bouncers Attack!'"), insurance companies have taken to writing very broad exclusions exempting coverage for such injuries, including claims for negligent monitoring, hiring, or supervision. This case from last week affirms a summary judgment award for the insurance company, and demonstrates some of the language that's being used in these policies.
Speaking of summary judgment, in my research on other legal blogs I ran across an interesting discussion of the subject, sparked by this article on why summary judgment is unconstitutional. (The cite I gave you is the abstract for the article; if you want to read the whole thing, page down and click on one of the links under "download the document from.") The author's argument isn't nearly as outlandish as it might appear: he essentially contends that the 7th Amendment was intended to protect the right to jury trial as it existed at common law, and the common law didn't have any provision for summary judgment. It's a decent textualist argument, but I'm not sure I buy it, and I'm highly skeptical of whether the courts will.
Which may be too bad. There's some recent research out there, as well as some anecdotal evidence, that suggests that summary judgment is being dispensed more freely and, more significantly, that it's not really cutting down on court dockets. In fact, it may be having the reverse effect: rather than resolving cases early through settlement, if there's any doubt as to the viability of the action, the parties now defer settlement discussions until after summary judgment motions have been ruled upon, necessitating substantial expenditures of the parties' time for discovery, and the court's time for ruling on the motions. There's no question that it's taking up a lot of the appellate court's time: of the 44 cases I reviewed for writing this post, 29 were either criminal, juvenile, or divorce cases. Of the 15 remaining "true" civil cases, 12 had been disposed of in the trial court by summary judgment.
I'm back from vacation and found several notes, after my post last week about the web site that ran the contest to pick "hotties of the Federal bench," suggesting that I do the same for the Cuyahoga Common Pleas court. Short of stealing money from my clients, I can't think of a surer way to end my legal career, so we'll pass on that.
Keeping up with the past -- cases that have been decided -- is certainly essential, but sometimes it's a good idea to check up on what might be happening in the future. There are several cases pending in both the Ohio and US Supreme Court that are of some interest. The former, for example, had oral argument the other week in In re James, a custody decision out of the 1st District. Because of claims of abuse, the parents had given the grandparents custody of the child. Several years later, the parents asked for a return of custody, and the court complied. On appeal, the 1st District held that the "change of circumstances" and other requirements imposed by 3109.04(E)(1) were unconstitutional as applied to the parents, because they had a paramount right to custody. The only question in these cases, according to the 1st District, is whether the change is in the best interest of the children.
It's an interesting argument, although it might have been better framed: essentially, the contention would be that, given the parent's paramount right to custody, the only way they can be denied custody is by showing they're unfit. Coupled with the fact that, despite the initial abuse claims, the evidence in the lower court was pretty good for the parents, I'd be surprised to see this one reversed by the Supreme Court.
Children are also involved, somewhat tangentially, in another case being argued before the Supreme Court this week. In State v. Lowe, the defendant was convicted of having consensual sex with his 22-year-old stepdaughter, despite his argument that the statute prohibiting a step-parent from having sex with an adult stepchild was unconstitutional. The case does raise the intriguing question of how far the state can go in regulating sexual relations between consenting adults, in light of the US Supreme Court's decision in Lawrence v. Texas, which invalidated sodomy laws prohibiting homosexual conduct. With our Supreme Court, though, the claim that the law preserves the family unit should be more than sufficient to affirm the conviction.
What the hell am I talking about? "Sufficient"? There's as much chance of our Supreme Court putting its stamp of approval on stepparents messing around with their stepchildren, even adult ones, as there is of the state legislature designating August as Oral Sex Month.
So why did the Court agree to hear the case? My guess is that it wanted to clean up the court of appeals' opinion. The latter spends a good deal of time talking about how "one does not have a constitutional right to engage in sexual relations with their stepchildren." That sounds quite similar to the US Supreme Court's argument in Hardwick v. Bowers, the 1984 case in which it rejected an attack on Georgia's sodomy law. Justice White's opinion in that case openly ridiculed the notion that "the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy." As Justice Kennedy noted in Lawrence, which overruled Hardwick, the real question is whether the constitution permits the state or federal governments to regulate private adult consensual sexual activity. Essentially, Lawrence holds that there is a "liberty interest" in such intimate conduct, which the state cannot infringe without a legitimate interest. (Notably, the court did not say that the interest had to be compelling. When the Ohio Supreme Court affirms Lowe, I'll bet they spend a lot more time talking about the state interest in prohibiting step-parent/stepchild relations than they do about whether there's a fundamental right to engage in them.
The US Supreme Court's term started on Monday, although the first oral arguments were postponed until Tuesday because of the religious holiday. There are a couple of cases scheduled which deal with the retroactivity of Blakely and Booker, which might have some ramifications for Ohio. And there'll be another opportunity for the Court to play one of its favorite games, 9th Circuit Smackdown: in Carey v. Musladin, the 9th Circuit reversed a murder conviction because the victim's family had sat in the front row during the trial wearing 3-inch buttons containing a picture of the victim; according to the 2-1 opinion, this unfairly prejudiced the defendant. The Supreme Court has reversed 11 of the last 15 cases from the "9th Circus," as it's known in some legal circles, and this will make it 12 of 16; I'll be somewhat surprised if it's not unanimous. On the civil side, in addition to a couple of cases on partial birth abortion, there's one dealing with the constitutional limits imposed on awards of punitive damages -- a jury in Oregon awarded $79.5 million in punitive damages against Phillip Morris in the wrongful death case of a smoker.
If you're interested in keeping up with what's going on in the US Supreme Court, the place you want to check out is Scotusblog. It will not only give you info on what's happening at the court, like the upcoming oral argument calendar, but it also has some interesting stuff on more politico-legal and theoretical arguments, like this piece on judicial activism.
If you've got a case involving landowner liability for intentional third-party torts -- which is lawyer-speak for Aunt Rosie getting knocked down and her purse stolen while she's shopping at the local mall -- you'll want to take a look at the 8th District's recent decision in Sabat v. Garfield Mall. That's pretty much what happened: the plaintiff, an elderly woman, was found unconscious behind her car, and when she died sixteen months later, her husband filed a claim for wrongful death against the mall. The trial court granted summary judgment, concluding that it wasn't clear whether any intentional act had even occurred; there was some evidence that the woman had merely blacked out. The 8th District did find that this was a genuine issue of fact, but affirmed the judgment anyway, deciding that any attack wasn't foreseeable, and thus the mall wasn't liable. The decision, by Judge Cooney, has a fairly comprehensive discussion of the law on the subject, including the provision of the wrongful death statute that holding a landowner liable for intentional third-party torts requires proof of "gross negligence."
Speaking of intentional torts, there was a decision a few months back by the Supreme Court on liability of the employer for the employee's torts. The plaintiff had gone into a bank to get a loan to buy a business, got turned down for the loan and, to add insult to injury, the bank officer who'd taken the application used the information to buy the business for himself. The court of appeals upheld the judgment against the bank, finding that the bank was liable because it put the officer in the position where he could commit the tort, but the Supreme Court reversed, holding that employer could not be held liable for the employee's intentional tort under respondeat superior unless it could be shown that the employer benefited from it. This is a fairly important development in the law, and goes against the position of the Restatement of Torts.
Speaking of employees -- and notice the clever segues here -- the 8th District also came out with another decision on arbitration clauses, this time affirming the validity of one in an employment contract. I've done more than half a dozen posts on arbitration clauses, because I think it's clear that this is a rapidly-developing area of law as more companies try to avoid the uncertainties of the jury system. (You can find the previous posts by putting "arbitration" into the search field to the upper right and hitting "Find.") At this point, it seems that there's a clear trend developing, at least in the 8th District, of subjecting such provisions to very strict scrutiny in consumer transactions -- especially ones for major purchases, such as a car -- while using a much more relaxed standard in other contexts, such as employer-employee agreements.
Speaking of segues, yours truly was once a disc jockey. For about eight weeks. At a campus radio station. Actually, it was a campus residence hall radio station, which played only in the dining hall, and through the electrical outlets in the dorm rooms. (I am not making this up. WTAM boasts of being a 50,000 watt station. I think we were maybe 15 or 25 watt.) I wasn't particularly good. That's not true; I wasn't at all good. My scheduled slot was from 1 to 3 on Sunday morning. I'd amuse myself by playing songs I liked that nobody else did, and running contests, like "first caller wins $25,000 and a date with Stevie Nicks!" No one ever called.
You know the phrase, "you've got a good face for radio"? Apparently, I've got a good voice for blogging.
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