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Privacy, Foster & ex post facto, and beating up defendants

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.

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