November 2006 Archives
Does this mean we'll get better plea offers? Since 2003, Sen. Dick Durbin (D-Ill) has been pushing a bill which would provide up to $10,000 per year in debt relief on student loans to public sector lawyers in the criminal justice system -- prosecutors and public defenders. You can read about it here. The bill passed committee last year, but was squelched by the Senate leadership. Durbin thinks that with the new leadership, it might have a chance. Yeah, considering that he'll be the new assistant majority leader...
I got an email from an attorney yesterday who just had a client maxed out at five years imprisonment for a third degree felony. The lawyer wanted to know if there was any argument he could make, post-Foster. This is a subject that's coming up with increasing frequency, because some judges have concluded that Foster gives them unbridled discretion on sentencing.
That's not true, and a few months ago I mentioned a couple of cases that might be helpful in that regard. One of them is the 10th District's decision in State v. Knopf, discussed here, and the other is a recent 8th District case, State v. Colon, discussed here. The short version is that while Foster negated the requirements for making findings before imposing more-than-minimum, maximum, or consecutive sentences -- which basically had become little more than talismanic ritual anyway -- it didn't affect RC 2929.12, which lays out the factors by which the judges are to evaluate seriousness of the crime and likely recidivism. And it didn't affect RC 2929.11, which sets forth the purposes of felony sentencing, one of which is to ensure proportionality.
That's not to suggest that getting a sentence overturned is going to be a cakewalk. But it does suggest that sentences at the far end of the spectrum -- consecutives or maximums -- could be subject to attack, especially if the judge fails to make a record, and if the sentence is disproportionate. It's not a great option, but it's better than nothing.
Finally, the other day I mentioned the killing of the 92-year-old woman in Atlanta last week in a drug raid by a SWAT team. That took a decidedly bad turn for the police in the last few days. The woman, it turns out, was "only" 88, but that doesn't make much difference. This does:
The confidential informant on whose word Atlanta police raided the house of an 88-year-old woman is now saying he never purchased drugs from her house and was told by police to lie and say he did.
The informant, who said he worked with Atlanta police for four years, also told WAGA-TV that he hadn't been to 933 Neal Street. His identity hidden, he told the TV station that one of the drug officers called him soon after the shooting with instructions.
Quoting the police officers, the informant told Fox 5 News: " 'This is what you need to do. You need to cover our (rear). ... It's all on you man. ... You need to tell them about this Sam dude.'"
I'm not sure whether the informant's being truthful about that; the warrant and affidavit, which you can read here, did specify that address, so unless there was some massive conspiracy to alter all that later, the CI's claim doesn't make much sense. Then again, the police are in a bit of a bind arguing that the informant shouldn't be believed, because their reliance on his credibility is the reason that Kathryn Johnston is dead. What's more, the affidavit makes it perfectly clear that the police had absolutely no basis for the search warrant other than a single buy of $50 in cocaine that afternoon -- no surveillance, no other reports, no other buys, zip, nada, nothing.
Here's a notice of appeal I think every lawyer has thought about filing at some point in his career. You might want to save it as a form and use it where appropriate.
A blog I've added to the Blog Roll is the one done by the Cleveland Law Library. It offers a quick run-down of events concerning Ohio law, and is worth checking out a couple times a week. Another one you might want to take a look at is the Volokh Conspiracy, a politico-legal blog written by a couple of law professors at the University of Chicago, dealing with, well, political-legal issues, like the Patriot Act and gay marriage. And just about everything else: Sunday's post, for example, explained how Federal regulations prohibit wine makers from touting the health benefits of red wine. I'll drink to that.
Back to the cases. If you've got a personal injury case involving your client, or the car he was riding in, hitting a utility pole, you'll want to look at the 8th District's decision last week in Turner v. Ohio Bell. The car in which the plaintiff's decedent had been riding ran off the road, striking a telephone pole just two and a half feet from the berm. The trial court had tossed the case on summary judgment, but the appellate court reversed. It rejected the defendants' contention that the pole had to actually be placed on the highway for liability to exist -- and why the defendants made such a ridiculous contention is known only to them and their god -- and held that
As long as the pole is within the right of way and in such close proximity to the road as to create an unreasonable danger to the traveling public, liability may exist.
The opinion by Judge Gallagher does a nice review of prior Ohio law, distinguishing cases where the pole had been more than ten feet from the berm, and holds that the closeness here presented a jury question.
One of the benefits of doing a blog like this is that it you begin to form an impression of the court as a whole, whether it's pro-plaintiff or pro-prosecution or whatever. Of course, there are twelve judges on the 8th District bench, and the result in any case depends upon which three wind up on the panel. Overall, though, it appears to lean a bit more toward plaintiffs in personal injury and especially consumer cases, with some exceptions. (For example, the "open and obvious" doctrine is applied in slip and fall cases with a vengeance.) And some of the judges who wind up closer to the plaintiff side come as a bit of a surprise.
The defendant in State v. Marcus recently got a rude introduction to some of the intricacies of Ohio's drug laws. The police had set him up for a controlled buy of cocaine, but when the deal went down, it turned out that what he had tested negative for drugs. He was convicted of both drug trafficking under RC 2925.03 (offering to sell), and offering to sell a counterfeit controlled substance under RC 2925.37(B).
On appeal, he argued that the Supreme Court's decision last May in State v. Chandler meant that one had to have a measurable quantity of actual drugs in order to be convicted of sale. Chandler simply holds that the drugs have to be real in order to convict the defendant of the major drug offender specification, as I explained in my post about the case at the time; the 8th District rightly noted that there any number of cases out there holding that somebody can be convicted of trafficking for only offering fake drugs for sale.
In fact, there are plenty of cases holding that you can be convicted of both trafficking and counterfeit substances; they're not allied offenses. While this is technically correct under standard allied-offenses analysis, it's one of those cases where the technical basis of the law doesn't rest on a logical basis: if you're going to penalize people for drug trafficking regardless of whether the drugs they're dealing are real or not, it doesn't make much sense to have a separate statute on dealing fake drugs.
I did run across one interesting case, though. In State v. Garrett, the 11th District held that in order to convict someone of counterfeit drugs, you have to prove that they were counterfeit drugs. The state hadn't introduced the substance, nor did they offer any testimony about tests done on it; they simply had lay witnesses say that it didn't look like LSD. According to the court, that wasn't enough. If you've got a case on counterfeit drugs, that's definitely worth a look.
Another thing worth a look is Ohio Prof. Doug Berman's blog, Sentencing Law and Policy, a recent addition to the Blogroll on the right sidebar. It'll give you information on virtually every aspect of state and Federal sentencing law, and some good insights as well; Berman correctly predicted the difficulties Ohio's sentencing scheme faced after the US Supreme Court's Blakely decision, difficulties that culminated in the Ohio statutes being thrown out in large measure earlier this year.
By the way, on this date in 1975, President Gerald Ford nominated John Paul Stephens to the Supreme Court seat vacated by William O. Douglas.
Speaking of Christmas, here's a t-shirt you can give as a present to all your employees. Should preserve that esprit de corps among the rank and file. And, of course, if they're looking to get a present for you, make sure you let them know about the Care-o-Meter.
I wrote an article this week about law blogs for one of the local bar association magazines -- it'll be published next January, maybe -- and it was rather interesting to see what's out there. You could literally spend hours every day finding informative or entertaining stuff. The Volokh Conspiracy, a politico-legal blog, had a link to a good take-off on A Wonderful Life featuring George W. Bush. It also led me to this post on another blog about the recent shootout between Atlanta police doing a drug raid and a 92-year-old woman. The author reviews the basic rules -- if the police break into your home and you mistake them for intruders and shoot them, you're at fault, but if the police break in, mistake the remote in your hand for a gun, and shoot you, nobody's at fault -- and concludes that the best solution might be to stop breaking into people's homes for nonviolent offenses. (And this, of course, after the US Supreme Court decided earlier this year that the exclusionary rule shouldn't apply any longer to police violation of the "knock-and-announce" rule.)
That's the weird thing. I found lots of interesting legal commentary, but I also found stuff like a blog devoted to the humor of intellectual property law. Don't laugh; or rather, do. One of the things I learned there is that if you've got a business named Speed of Art, you might want to give a second thought to your Internet domain name, unless you want your company associated with the name www.speedofart.com.
One of the things I also learned is that there's not a lot of blogs devoted to Ohio law. The Cleveland Law Library has a decent one, which I've included on the Blogroll on the right. But with all due modesty, this blog is probably the best blog providing commentary on general Ohio civil and criminal law, primarily because it appears to be the only blog doing that.
Still, there are a lot of blogs out there, and I've added some in the Blogroll on the right. I'll be highlighting one or two each day. You can also click on the Blog Taxonomy link there. It actually takes you to the 3L Epiphany blog, run by a recent graduate of Ohio State Law School. He's got a listing of legal blogs -- I don't have any idea of how exhaustive the list is -- organized by jurisdiction, specialty, subject, author, and just about anything else you can think of. If you want, spend a little time there, and see if you can find something that might be helpful to you.
I have't done a legal post since last Tuesday, and the cases are backing up on me, so I'll be getting to that the rest of the week. In the meantime, in the category of When Bad Things Happen to Bad People, check out the 8th District's decision in Fazio v. Stefano, a personal injury case in which the plaintiff had $8,100 in medicals and the defendant's insurer, Allstate, offered $6,300. A week before trial, the plaintiff reduced his demand from $30,000 to $20,000. Allstate didn't budge. The jury awarded $115,000. (In keeping with the season, yes, Virginia, there is a Santa Claus.) To add insult to injury, the trial judge awarded $32,700 in prejudgment interest, which the appellate panel upheld.
See you tomorrow.
Hmmm. New York has proposed changes in their ethics rules that would require all electronics communications from lawyers to carry the word "ADVERTISING," and defines advertising as "any public communication made by or on behalf of a lawyer or law firm about a lawyer or law firm, or about a lawyer's or law firm's services." It would unquestionably apply to email -- the proposed rules change requires that "ATTORNEY ADVERTISING" appear in the subject heading -- and there's a question of whether it would apply to legal blogs, like this one. Of course, that's New York, and this is Ohio, so assuming the normal pace of things, when Ohio adopts such a rule it would apply to my great-grandchildren. But should the pace be accelerated, you can rest assured that I'll comply with such nonsense only when they pry the computer keyboard out of my cold, dead hands.
Tomorrow's Turkey Day, and as you might guess, I'm not exactly in the mood to be doing any intensive research, so we'll just throw out some odds and ends. The 6th Circuit decided a case last year, US v. McClain, which upheld a search with a warrant under the "good faith" exception, despite the fact that the warrant itself was based on information obtained in a previous illegal search. Earlier this year, the court denied an en banc hearing over some particularly acrid dissents, and last week the Supreme Court denied cert.
Speaking of the 6th Circuit, it's going to have oral arguments en banc in December on a case involving the 2004 elections and the applicability of the Supreme Court's 2000 decision in Bush v. Gore to the question of whether using punch card ballots in only some counties was a violation of equal protection. If you're so inclined, you can read more -- much, much more -- about it here.
If you've got a big case, and you'd like to do a mock jury but don't want to spend big bucks doing it, you might want to take a look at this. It's a company that's put up a web site which will allow you to submit a case and have it decided by online jurors similar to ones that wind up on real juries. A written presentation costs $1500, an audio one $2000, and a video one $2500. They have a demo on the site that you can check out.
And last but not least, I am now going to provide you something more useful than all the posts I've put up here over the past six months: the 2006 Holiday Gift Guide for Lawyers. It was put together by Reid Trautz, author of Reid My Blog!, a legal blog devoted to legal management and technology issues. The first offering definitely sets the tone:
Most of the Parrotheads I know are lawyers, and everyone of them would love to have the Margaritaville® Frozen Concoction™ Maker in their particular harbor. About $300 from Jimmy's Margaritaville Cargo.
Think I'll have one of those tomorrow. Sounds very Turkey Day-ish.
See you on Monday.
To what extent can the prosecution use computer printouts to prove its case? That was the issue last week in State v. Garrett, where the 8th District reversed a conviction for receiving stolen license plates. The state had presented the testimony of the plate's owner that they'd been stolen, and the arresting officer testified that the computer printout from the BMV confirmed that. The court noted that the owner did not identify the plates or registration in court, and held that the officer's testimony about the printout wasn't sufficient.
This, the court noted, was in keeping with the precedent from the district, namely the 1983 case of State v. Sims, which held that
A computer print-out report is not reliable and trustworthy proof that an object has been stolen. Errors commonly occur in the recording, retention and retrieval of computer information.
That's certainly a handy decision to have, and the prosecution's approach to this case appears to have been rather lackadaisical: the state did not even introduce the printout, instead relying upon the police officer's recollection of it, which the trial court, somewhat bewilderingly, admitted under the business exception to the hearsay rule. And, as mentioned, the entire issue would not even have arisen if the victim had identified the license plates in court.
Still, Judge McMonagle's dissent raised some fair points. As she notes, in Sims the victim was never even called to testify: the entire case had been based upon the computer printout. Here, the victim did come in and testify that the plates had been stolen, and the police officer testified that the defendant had them. That would seem to solve the problem.
Of course, proving that they'd been stolen and that the defendant had them still leaves the element that the defendant knew or had reasonable cause to believe that they'd been stolen. This wasn't a problem here; as Judge McMonagle noted,
If there were any question regarding defendant Garrett's reasonable cause to believe that the plates had been obtained through the commission of a theft offense, it was resolved when he told Officer Sowul that he "bought them from some crackhead." Plates are purchased from the Bureau of Motor Vehicles -- not "crackheads." A finder of fact could reasonably infer that a person who purchases license plates from a "crackhead" would have reason to know they were stolen.
I suppose an enterprising defense attorney could have argued that he meant that he bought the license plate from a crackhead at the BMV, and if the judge's experiences with that agency paralleled mine, she might have bought it.
It's going to be a light week here, with the holiday coming up. My daughter's coming over for Thanksgiving, and she's a vegetarian, so I'll probably have to come up with a tofu turkey or something. For her, that is; I had tofu once, and I'd rather eat drywall.
I wanted to use the next few days to briefly highlight some recent decisions out of the 8th District. One of them is O'Toole v. Denihan, which involved the death of a 4-year-old girl as the result of abuse, and the subsequent lawsuit against the Department of Childrens & Family Services, its director, the supervisor, and the social worker involved in the case. The trial court had granted summary judgment on the basis of the Supreme Court case in Marshall v. Montgomery Cty. Children Services, which had rejected a similar claim on sovereign immunity grounds. The 8th District reversed, finding the case to be similar to Campbell v. Burton, decided by the Supreme Court the same day it handed down Marshall.
The difference between the two turns on a very simple fact: in Marshall, the plaintiffs argued that the defendants had failed to investigate a claim of child abuse, and in Campbell, they argued that the defendants had failed to report a claim of child abuse. RC 2151.421 requires agency officials (and others) to report abuse. The sovereign immunity statutes, specifically RC 2744.02(B)(5), provide an exception to immunity where a statute expressly imposes liability upon a political subdivision; according to the Campbell court, the requirement to report abuse did just that. In Marshall, however, the court find that there was no similar statute requiring the agency to investigate abuse, and therefore the agency was immune.
One of the problems with O'Toole is that the facts really aren't laid out in the opinion; one of the key questions in the case appears to be if there's a "genuine dispute of fact" as to whether a report was faxed to the police, but it's not clear even what the report was, let alone its significance. That's enough, though, for the court to hold that this is a "reporting" case like Campbell, rather than an "investigating" case like Marshall.
The court also suggests that another ground for distinguishing Marshall and holding that immunity does not apply is that the defendants' conduct here was reckless, and it goes into some detail on the agency's specific failings in that regard. The court's opinion in this respect, though, seems to be based on a misunderstanding of how sovereign immunity works.
It's not difficult to misunderstand it, because it's a mess. Basically, the general rule of RC 2744.01 is that political subdivisions are immune from torts. RC 2744.02 then sets out five exceptions to that rule. If one of those five exceptions exists, you then look at RC 2744.03, which provides six defenses to the exceptions set forth in 2744.02. You then multiply by Tuesday, and there's your answer.
Okay, I'm kidding about the last part, but you get the idea. The problem here arises because 2744.03 provides that "the employee is immune from liability unless * * * the employee's acts or omissions were with malicious purpose, in bad faith, or in a wanton or reckless manner." If you're not careful, you think that immunity doesn't apply if the employee was acting recklessly, which was what the court in O'Toole was getting at.
But that's not how it works. Unless you find immunity doesn't exist under 2744.02, you never get to 2744.03. As the 11th District noted last year when confronted with the argument that a political subdivision and its employees waived immunity because of their intentional conduct,
R.C. 2744.03(A)(5) is not a workable exception to a political subdivision's general immunity; rather, stated with the turbidity of any summary pertaining to Chapter 2744, R.C. 2744.03(A)(5) provides an exception to an exception to an exception. * * * A plaintiff may hold a political subdivision liable for those acts executed with "malicious purpose, in bad faith, or in a wanton or reckless manner" only where he or she first sets forth a valid exception to immunity under R.C. 2744.02(B) and the political subdivision asserts immunity anew under R.C. 2744.03(A)(5).
For those of you without a dictionary handy, "turbidity" means "being thick, muddy, not clear, confused, disordered." That just about nails it.
It may be that O'Toole will usher in an era of holding child service agencies more accountable for their practices and placements, and that probably would be a good thing; even the Marshall court came its conclusion absolving the agency quite reluctantly. If you want a rigorous analysis of how the sovereign immunity statutes work, though, you might be better off looking elsewhere.
Nothing to report from the Supreme Court this week, except a bunch of lawyers getting sanctioned, so let's get to the cases.
8th District holds that insurance company is estopped from claiming that it had no notice of default judgment against its insured... 5th District holds that trial court erred in calculating child support by not including spousal support as income to wife... grant of civil protection order proper even where no evidence of physical harm, says 12th District, where defendant's comments to victim, an Alzheimer's patient, caused her mental distress... 1st District rejects claim of retaliatory discharge for filing workers compensation claim... 10th District rules that ex-employee's use of memorized client info was violation of Ohio Trade Secrets act...
Pyrrhic victory? Defendant faces 58 years in prison, works out deal and gets 8, then appeals, and court vacates plea because trial judge didn't advise him of post-release controls... 5th District allows judge to determine restitution 17 months after sentence imposed, where sentence originally ordered defendant to pay restitution but did not specify an amount... misdemeanor menacing by stalking conviction cannot be expunged, 10th district holds... Court cannot sentence defendant to prison for community control violation if no sentence was specified at time of sentencing hearing, says 8th District...
Of the 60 criminal cases handed down by the Ohio courts of appeals in the past week, over one-third of them -- 22, to be exact -- involved a Foster sentencing issue.
Finally, a tip of the hat to appellant's counsel in State v. Delgado, who argued, unsuccessfully, that the trial court violated defendant's constitutional rights when it advised him that he had the right to testify or the right not to testify, and that "the judge and jury could not have drawn any inference from your decision to testify or not"; the appellant's brief argued that "the message conveyed to Mr. Delgado was that his testimony at trial would have no bearing on the verdict." That's two points for creativity, and three for having the ability to argue something like that with a straight face.
The crew down in Columbus is going to be busy this week, hearing oral arguments in nine cases. One of them is on an appeal from a medical malpractice case in which the 1st District court of appeals reversed a defense verdict because of improper conduct of the defense lawyer, marking the third time in three years that this same court had reversed this same lawyer for this same thing. (It later reversed yet another defense verdict by this lawyer on the same grounds.) Sending a message, are we? The court summarized the offending remarks thusly:
The trial court in a medical malpractice action erred by permitting defense counsel to make improper and inflammatory remarks to the jury during the trial to the effect that the minor plaintiff's "shameful" parents had manufactured her claim after seven years of researching the symptoms of meningitis and, with the help of plaintiffs' counsel, were able to "truck in 55 people and pay them $ 8,000 apiece" to say "something made up" to get a "$ 2,000,000 paycheck," and to "blow" the "good doctor" away and end her ability to practice medicine, and that the jury would condone "this type of conduct" by returning a verdict in the plaintiffs' favor
Oooh, where's the love? You can read the case here.
Another interesting case coming up for argument is one out of Cuyahoga County, where the court threw out a search based on non-compliance with the knock and announce rule. The US Supreme Court has since ruled that the exclusionary rule shouldn't be applied to no-knock cases, so the chances of this one being affirmed are about as good as Jessica Simpson's chances of getting into MENSA.
Lastly, the Federal Sentencing Commission had hearings on Tuesday on the advisability of one of the most criticized provisions of Federal criminal law: the disparate sentences for crack and powder cocaine. Under that law, someone possessing 5,000 grams of powder cocaine -- about 12 pounds worth -- can get 10 years in prison. Someone possessing only 50 grams of crack cocaine -- about the size of a candy bar -- is subject to the same penalty. Ohio law also treats the two separately, although it has only a 5-1 difference instead of a 100-1. For that reason, it's unlikely that Ohio law would be changed even if the Federal law was.
You're representing a defendant who's accused of using his girlfriend as a punching bag. When she gets on the stand, she denies anything happened. The state presents her with the statements she made at the time of the incidents, where she recounted the beating in vivid detail, and has her read them to the jury. She claims she made them up. Is that enough to convict the defendant?
Maybe yes, but maybe no, as the 8th District explained last week in State v. Kelly. The critical question is whether the prior statements can be used as substantive evidence -- i.e., whether the jury can use them as proof that a crime was committed -- or whether they can only be used for impeachment purposes. As Kelly explains, Ohio follows the latter rule, which was established back in 1971 in State v. Dick.
So what does that mean? Here's how it works in practice. The police in Kelly had taken numerous photographs of the victim's injuries. As the court explained,
The photographs constitute independent proof of the two felonious assault and one assault counts. Thus, the jury could test the credibility of the victim's recantation by reference to the photographs. In other words, the jury had every right to consider the recantation as dubious in light of the demonstrated physical evidence of injury depicted in the photographs. A bloody nose, swelling and bruising were consistent with the kind of injury suffered as a result of an assault or felonious assault. The jury could find the victim's denial in light of this evidence to be unbelievable.
The defendant had also been convicted of abduction and intimidation. The court tossed those, finding that there was no independent evidence, other than the victim's recanted statements, to support them.
From a logical standpoint, this doesn't make a lot of sense. That's not the court's fault; the opinion closely tracked the law as it's been laid down by the Ohio Supreme Court. The chief problem seems to be the mental contortions involved in pretending that the statement isn't going to be used as substantive evidence. Here's the cautionary instruction that the judge used, and that the Kelly court approved:
The court cautioned the jury that "I'm instructing you not to consider that for the truth of whether those statements actually occurred but we're testing again the credibility of [the victim]." The court reiterated that it was permitting the statements for the specific purpose of examining the victim's credibility, not for "whether these events actually occurred ***." In fact, the court denied admission of the statements consistent with Dick because "they are not substantive evidence. They're impeachable. They merely go as to impeach. They do not go in as evidence."
Good luck with that. Obviously, the statements were used as substantive evidence, because while the pictures were proof that the victim had been beaten, they didn't prove who did it; the victim's statements were the only substantive evidence as to the identity of the assailant.
As I said, the problem isn't with the court's decision, it's with the rule. The Dick court (and I can hear Beavis and Butthead chortling in the background as I write that) based the rule on the notion that the person making the statement hadn't been subject to cross-examination when the statement was made, but I don't see that being a big deal as long as they're subject to cross-examination at trial.
Still, Kelly's a good decision to have handy. I've seen more than a few occasions where the prosecution attempts to prove a domestic violence by doing nothing more than presenting a recanting witness with her prior statements, and Kelly clearly holds that that's not going to do the trick.
The Kirchner saga has finally come to an end. As you may remember, Kirchner was a 20-year-old who got drunk down in the Cleveland Flats, walked out onto the pier to relieve himself, fell into the river, and drowned. Back in July, the 8th District affirmed a grant of summary judgment in the suit his parents brought against the bar, saying that the danger was open and obvious. The case was certified to the Supreme Court, but that court kicked it out a couple of weeks ago because the appellant's counsel stopped payment on the check for the filing fee. Well, last week the appellant filed a motion for reconsideration, tendering a new check. The Court said, no thanks.
That should be a fun discussion with the client, don't you think?
Speaking of the open and obvious doctrine, there was an important case on this out of the 9th District recently. In Marock v. Liedertafel, the plaintiff, while returning to her table, had tripped over a case of empty beer bottles that had been left in a narrow walkway. The trial court granted summary judgment, saying that the obstruction was open and obvious.
The court reversed, holding that the "attendant circumstances" -- the dim lighting in the bar, the noise, the activities of other patrons -- made the question of whether the plaintiff should "reasonably" have been expected to see the beer case one for the trier of fact. While other courts have used attendant circumstances to blunt the effect of the open and obvious doctrine -- as I noted several months ago -- the 9th District's treatment was unique. While other courts have held that attendant circumstance can create an exception to the open and obvious doctrine, the 9th District decided that it's all one big ball of wax: attendant circumstances are part of the "totality" of the circumstances in gauging whether a hazard is open and obvious to begin with.
I'm not sure this is going to alter the outcomes in many cases: determining whether attendant circumstances create an exception to the application of the open and obvious doctrine in a particular situation, or determining from the totality of the circumstances whether something is open and obvious to begin with, seems to be six of one, half a dozen of the other. It's certainly not going to lend a lot of clarity to the law; as anybody who's studied the decisions on stop and frisk or pretrial identification knows, "totality of the circumstances" isn't a magic wand by which all the vagaries in the case law disappear.
On balance, it's a favorable case to plaintiffs, if only because it focuses attention on the key question of whether a hazard is indeed open and obvious. Frankly, I'm not sure that the 9th District had to go to the lengths it did in reversing the grant of summary judgment. Let's face it, if whether a beer case on the floor in a narrow walkway in a dimly-lit bar constitutes an open and obvious hazard isn't a question for a jury, what is?
By the way, this is the 6-month anniversary of The Briefcase. Party down, guys.
Two years ago, in Crawford v. Washington, the US Supreme Court laid down the rule that the Confrontation Clause barred the admission of out-of-court "testimonial" statements against the accused at trial, even if they qualified under a hearsay exception. Since that time, the courts have wrestled with the definition of what constitutes a "testimonial" statement.
The Crawford court declined to define what the term meant, but did give examples. The first two, ex parte communications such as statements to the police and extrajudicial communications such as affidavits and prior testimony, are fairly clear. It's the third one that creates a problem: "statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial."
The Ohio Supreme Court tackled that question last week in State v. Stahl, with unfortunate results. Stahl was accused of raping a woman who'd come to see him about getting her boyfriend's job back. The woman reported the incident to the police, made a detailed statement, and then was taken to the local hospital's Developing Options for Violent Emergencies (DOVE) unit, which essentially specializes in taking evidence from rape and domestic violence victims. The woman signed a consent form stating
I voluntarily consent to this forensic examination and collection of evidence. I have received a detailed description of the steps of the process and understand that I may withdraw my consent to any or all parts of this examination at any time. I authorize the release of evidence, information (including protected health information), clothing, colposcope photos, and photography documentation of injuries to a law enforcement agency for use only in the investigation and prosecution of this crime. I understand that if release of the Sexual Assault Evidence Collection Kit is not authorized, the kit will be kept at the SANE [Sexual Assault Nurse Examiner] Unit for sixty days and then destroyed." (My emphasis).
The woman made a detailed statement to the nurse of how the rape allegedly occurred; the police officer remained in the room during the entire time. Five weeks later, the woman died of an unrelated illness. The defense moved to suppress the statement given in the DOVE unit, and the trial court agreed that it was testimonial pursuant to Crawford. The court of appeals didn't.
Neither did the Supreme Court. The Court focused on the last example of testimonial statements -- a statement that a witness would believe would be used at trial -- and concluded that the key factor to be used in this analysis is the expectation of the declarant, not the motivation of the questioner.
That's arguably correct, but the court's conclusion that the victim here would have expected that her statement would only be used for medical treatment and not for prosecution is another matter. As the three dissenters point out, that's a hard sell given the express wording of the consent form and the presence of the police officer throughout the interview. Militating further against the belief that this was all for medical treatment is the fact that no medical treatment was provided; the woman didn't even see a doctor during the process.
An appeal from Stahl is likely, and if the US Supreme Court accepts cert, I'd lay at least even money on a reversal. One thing that Stahl does do, though, is sound the death knell for the argument that a statement by a child abuse victim to anyone other than the police -- even to a social worker investigating the abuse -- is barred by Crawford. Stahl gives numerous examples from other jurisdictions where such statements have been allowed. In fact, what Stahl arguably holds is that any statement other than one made to the police is going to come in as long as it meets one of the hearsay exceptions.
The Ohio Supreme Court handed down a couple of decisions yesterday, one holding that a plaintiff can recover noneconomic damages, such as stress, in actions under the Consumer Sales Practices Act. The defendant was an auto dealership -- now there's a surprise -- which wound up getting socked with a jury verdict of $315,000 for hosing a customer on a financing deal. The company had turned down an early demand of $4,500, and the owner was quoted as saying, "If I'd known it was going to come to this, I would have settled it for that." Yeah, I guess so. Boo hoo.
The other case involved a question of whether a statement to a nurse in a rape case was testimonial, and thus barred by the Crawford decision. (I've had a number of posts on Crawford, and you can read a couple of them here.) The victim had died after giving the statement, and the court upheld the admissibility of the nurse's statement by a 4-3 vote. I'll have more on that next week.
On to the appellate courts.
8th District holds that trial court not required to advise defendant of affirmative defenses for guilty plea to be valid... Oddity from the 10th District: it affirms the trial court's decision refusing to classify defendant as a sexual predator... 3rd District vacates 180-day jail sentence on DUI because record didn't show defendant properly waived counsel, lets remainder of sentence stand...
8th District reiterates that grand jury indictment creates rebuttable presumption of probable cause in defense to malicious prosecution suit... 10th District finds that defendant didn't breach lease by not fulfilling "hypertechnical" notice requirements of non-renewal clause where landlord had actual notice that defendant intended to leave... 9th District holds that surviving stepparent can pursue visitation even after remarriage... 11th District finds error in court awarding spousal support where wife withdrew her claim to it at trial... Good case from the 4th District on when counsel can be disqualified because they might be called as witnesses at trial...
Interesting procedural point from the 8th District last week. You file a complaint naming several John Does, and the court grants summary judgment in less than a year after you file. You can't appeal from that unless you get the 54(B) final order determination from the trial court, because the John Does are still parties. You can avoid that by voluntarily dismissing them out at that point, but if you don't do that or get the 54(B) determination, the appeals court will dismiss the appeal. That may put you in a real bind: at the end of the year, the John Does drop are no longer defendants because you haven't gotten service on them, but by that time you may be more than 30 days beyond the ruling on the summary judgment. Does your appeal time run from the ruling, or from the end of the one-year period? The court doesn't say.
And last, there's a 5th District decision on what's necessary to prove a claim for sexual harassment, which included a reference to a case which held that a "manager's multiple comments over six months and unwelcome reaching inside employee's blouse was not severe and pervasive enough to constitute sexual harassment."
I got done with an appeals brief last week in a murder case where the primary issue was the identification of the defendant. "Primary issue," in this case, translates to "the only assignment of error I could come up with that didn't make me laugh out loud." As most criminal lawyers know, there's a constitutional dimension to eyewitness testimony: it's a due process violation if the police use a procedure that's unnecessarily suggestive and likely to lead to a mistaken identification at trial. One of those procedures is a "showup," also called a "cold stand," where the cops arrest someone shortly after the crime and take him back to the scene to see if the witnesses can identify him.
That's what I had in my case. It's fairly obvious that such a procedure is suggestive, and the courts have usually admitted as much, but that doesn't make much difference in the outcome; the courts almost invariably find that, from the "totality of the circumstances," the witnesses had a sufficiently independent basis for observing the defendant that the showup didn't impair that. (The 8th District's most recent discussion of that subject is in this case from January.) In fact, in the hundred-some cases that I looked at, I could find exactly one where the appeals court threw out the ID, involving a 74-year-old woman who claimed to have initially identified the defendant in a lineup. The reliability of her claim was somewhat undercut by the fact that the police officers testified that no lineup had been conducted.
So, if you've got a case involving this, file a motion to suppress and ask for a hearing, because it'll give you some free discovery. But unless the witness shows up with a dog and a cane, don't get your hopes up.
Every criminal lawyer knows that under Criminal Rule 16(B)(1)(g), he's entitled to request an in camera examination of a witness' statement at the close of that witness' direct examination, and to use the statement in cross if the court finds that an inconsistency exists between the statement and the testimony. How does that work with regard to police officers and their reports?
Back in 1984, the Ohio Supreme Court laid down the rule in State v. Jenkins, and reaffirmed it just two years ago:
Those portions of a testifying police officer's signed report concerning his observations and recollection of the events are 'statements' within the meaning of Crim.R. 16(B)(1)(g). Those portions which recite matters beyond the witness' personal observations, such as notes regarding another witness' statement or the officer's investigative decisions, interpretations and interpolations, are privileged and excluded from discovery under Crim.R. 16(B)(2).
Last week, in State v. Spraggins, the 8th District was confronted with a situation where defense counsel asked for an examination of the reports of the lead detective after he'd testified on direct. The state objected, claiming that they were not discoverable, and the court rejected the defense request. The appellate court reversed and remanded for a new trial, finding that since the trial court hadn't included the reports in the record, there was no way for the court's decision to be reviewed.
At first blush, the decision is unremarkable, but it gets interesting if you look at it more closely. Here's the critical passage from the opinion:
When Spraggins' counsel requested an in camera inspection of the [detective's] reports, the State claimed the reports were not discoverable, because they were work product. The trial court denied the request and failed to preserve the reports for appellate review.
When it is doubtful whether any discoverable statement exists, the court, on motion of the defendant, shall conduct a hearing on the issue of disclosure held in camera with both attorneys present and participating. [My emphasis]
If you look at the Supreme Court decision on this from two years ago, State v. Cunningham, it seems to say that the determination of whether the defense can use a police report for cross-examination of the officer is a two-step process: first, the court must make an "independent, threshold determination whether a 'producible out-of-court witness statement' exists within the meaning of Crim.R. 16(B)(1)(g)," in other words, whether the report is really a statement within the meaning of the rule, or whether it's simply "the officer's investigative decisions, interpretations and interpolations," and is therefore privileged. If the court decides that the report, or a portion of it, is a "statement," then the defense counsel is entitled to participate in the court's further detemination of whether it's inconsistent with the testimony at trial, and can thus be used for cross-examination.
But Spraggans folds that two-part inquiry into a one-step process, with the defense counsel being entitled to participate in the review of the report to determine whether it's a statement at all.
Obviously, in "open discovery" jurisdictions, getting to see the entire police report isn't that big a deal. But then again, Cuyahoga County isn't an open-discovery jurisdiction, is it? It might be wise to have a copy of Spraggans on hand for your next trial.
Case No. 1: A plaintiff sues, alleging that while visiting her sister in the hospital, she slipped and fell on spilled water in a kitchenette near the maternity room. The hospital moves for summary judgment, claiming that it had no notice of the water on the floor. The plaintiff had testified in her deposition that two people, one behind the desk on the delivery floor and another behind the front desk, had told her "that happens all the time," and that a couple days later a nurse had told her, "well, that happens all the time up there, things get wet and people fall... people run in there to get water, maybe a nurse will run in there to grab ice out of a machine or do something." The court holds that's hearsay, and grants summary judgment.
The 8th District affirmed that decision last week in Shreves v. Meridia Health System.
Case No. 2: A plaintiff sues, alleging that she slipped and fell on a "liquid" at a restaurant. The restaurant files a motion for summary judgment, claiming that it had no notice of the liquid being on the floor. The plaintiff files an affidavit from her sister in response, which states that "she believes that an employee mentioned a substance was spilled near the bar area and that the substance was mopped up but then forgotten about" and that "she believes that an employee mentioned that the floor had been waxed recently, either the night before or the morning of the baby shower." The court holds that's hearsay, and grants summary judgment.
The 10th District reversed that decision last week in Cordle v. Bravo Development Co.
What's the difference? Both appellate courts recognized that the statement of an employee usually isn't hearsay, because it's deemed an admission of a party opponent under Rule 801(D)(2)(d). That was good enough for the 10th District, which held that the statements that something had spilled earlier in the day and that the floor was freshly waxed were statements of fact, and were "well within the scope of the employee's knowledge and employment."
It wasn't good enough for the 8th District, though, which held that the plaintiff didn't meet her "the burden of establishing that the statement 'was made by an agent or employee of the party-opponent, during the existence of the relationship, concerning a matter within the scope of employment or agency.'"
I think the 10th District got this one right. The 8th District explained its decision to exclude the statements as follows:
Mrs. Shreves did not identify the individuals, by name or position, who allegedly made the statements, nor could she establish the statements concerned a matter within the scope of that person's authority. Other than Mrs. Shreves' self-serving statement that the individuals were employees of defendant, plaintiffs have failed to establish the scope of the agency relationship. Further, plaintiffs are unable to sustain their burden of demonstrating that these individuals had some authority regarding the subject matter.
There's no requirement that the person who made the statement be identified, and it's fairly easy to infer that someone sitting behind a desk at a hospital is an employee of the defendant. It's difficult to understand why there's any question as to the whether the individuals "had some authority regarding the subject matter." The only case the court refers to on this was a decision involving a lawsuit against a company that had submitted fraudulent paperwork, and claimed in response that an unnamed employee of the plaintiff had told them to go ahead and do it. It's one thing to claim that authorizing the commission of fraud wasn't within the scope of an employee's authority, but it's hard to see how the statement of a nurse that water was often spilled on the floor was outside that authority. If the employee had been clearly identified, would there have been any question that the statement could be admitted?
And that, I think, is the problem: the court simply doubted that the statements had been made, as indicated by its reference to the plaintiff's testimony being "self-serving." But the question of whether the employees really said that -- whether the plaintiff was telling the truth about that -- is not one for the courts. As the 10th District put it,
Resolution of a motion for summary judgment does not include trying the credibility of witnesses. If an issue is raised on summary judgment, which manifestly turns on the credibility of the witness because his testimony must be believed in order to resolve the issue, and the surrounding circumstances place the credibility of the witness in question -- for example, where the potential for bias and interest is evident -- then, the matter should be resolved at trial, where the trier of facts has an opportunity to observe the demeanor of the witness.
This gets back to something I alluded to a few months back: the increasing willingness of the courts to grant summary judgment in cases where the plaintiff has a marginal case, but one which would have survived summary judgment ten or fifteen years ago. You see that a lot in slip and fall cases -- the "open and obvious" doctrine has made that almost routine -- and in intentional tort cases.
It may well be that Ms. Shreve was making up what the supposed employees said. But that's up to a jury, not a judge or an appellate panel, to determine.
The US Supreme Court has granted certiorari in two cases to clean up the Booker mess. You'll remember that Booker held that mandatory application of the Federal sentencing guidelines violated the right to jury trial, but left the Guidelines in place as "advisory," and commanded the appellate courts to henceforth confine its review of sentences to whether the sentence was "reasonable." Now we get to find out what that meant.
Since Booker, the Circuit Courts have wrestled with the question of how much weight to give to the Guidelines. Six circuits have held that a sentence within the Guidelines is "presumptively reasonable." Four others have disagreed, holding that the Guidelines are only one of the factors to consider in fashioning a sentence. The 6th Circuit has varied; earlier decisions followed the latter approach, but more recent ones have moved toward the former view, and the corollary that sentences outside the Guidelines are presumptively unreasonable. Typical of this trend is US v. Davis, a case from three months ago, where the trial judge had sentenced the defendant to one day in prison and one year of home arrest, because the defendant was 70 years old and the offense had occurred 14 years ago. The 6th Circuit reversed, noting that the Guidelines called for a 30-37 month sentence, and the trial court's deviation was too much.
The two cases accepted by the Supreme Court for review will deal with both sides of that question. In the first, out of the 8th Circuit, the defendant was sentenced to 15 months in prison on a drug conviction that the Guidelines provided a sentence of 37 to 46 months. The appellate court reversed, noting that a trial court could deviate from the Guidelines only under "exceptional circumstances." The second case is from the 4th Circuit; the defendant there was sentenced to 33 months, and the appellate court affirmed that sentence as reasonable simply because it was within the Guidelines.
Argument is expected in February.
This post is somewhat unusual for me, because I don't usually do much about Federal law here. Some of my readers do a fair amount of Federal criminal work, so I'll touch on it from time to time. If you do a lot of it, one thing you might want to check as a resource is the 6th Circuit Blog, which is a combined effort by the Federal Public Defenders of that Circuit. I've included a link to it in the Blogroll on the right sidebar.
A few weeks back, I mentioned that there's some recent legal scholarship arguing that summary judgment is unconstitutional, at least on the Federal level, because it contravenes the 7th Amendment's guarantee of a jury trial. The same argument could be extended to Ohio cases, under Article I, Section 5 of the state Constitution. Last week, the 10th District reversed a grant of summary judgment. The case is relatively routine, but what caught my eye is that the appellant's attorney framed the assignments of error in constitutional terms. You might want to check it out. On the other hand, it does no good to do this if you don't raise and argue the issues in the lower court, and that might be more than you want to take on. Just a thought.
On to the cases:
6th District says that filing of affidavit of indigency before sentencing is required to avoid mandatory fine in drug case, even though judge suspended costs; determines that attorney wasn't ineffective in failing to file affidavit, since finding of indigency was unlikely: defendant had posted $100,000 bond and retained attorney... 1st District holds court wrong in taking judicial notice of reliability of laser device, based solely upon transcript of another municipal court hearing on it; a journal entry from the second court finding the device reliable was required... 12th District holds that 24-minute delay for traffic stop not unreasonable... Trial court erred in denying motion to vacate plea without first conducting a hearing, says 1st District...
Good case on grandparent visitation from 9th District, which upholds schedule a noncustodial parent would have received, where child lived with grandparents for three years... Father's deployment to military duty not change of circumstances justifying modification of custody from father to wife, where deployment was contemplated at time of decree, holds 3rd District... Trial court used improper standard in appeal from administrative agency when it evaluated agency's conclusions on sufficient evidence, not on a "preponderance of substantial, reliable, and probative evidence," says 9th District...
There were four disciplinary cases handed down by the Supreme Court last week, for various and sundry offenses, most involving taking money from people and not doing the work. One of them that struck me as particularly compelling was Columbus Bar Ass'n v. Farmer, where the attorney had taken over an appeal, telling his client and the family that the brief filed by appointed counsel "wasn't worth the paper it was written on," and that he'd need to withdraw that one and file a new one. He got over $8,000 from the family, filed a motion withdrawing the old brief, and then filed his own -- which consisted of the brief the appointed lawyer had filed, virtually word for word.
Plagiarism, and getting people to part with money by promising them things you can't or won't do, aren't good things. But neither is badmouthing other lawyers. People aren't going to respect us as a profession if we don't respect each other.
Every now and then, instead of reading through Ohio decisions, I get lazy and decide to surf the web and pick up stuff. This is one of those days.
Yeah, I know this is a blog about Ohio law, but the Illinois Supreme Court came down with a decision the other day that's somewhat interesting: it held that a plaintiff in a legal malpractice case wasn't entitled to recover the punitive damages that the lawyer's negligence might have cost it. You can read about the decision here. It's a curious intellectual conundrum: on the one hand, since punitive damages are intended to punish a tortfeasor for particularly egregious conduct, it's not fair to impose them upon a lawyer who's merely been negligent. On the other hand, the purpose of a malpractice judgment is to make the plaintiff whole -- i.e., allow him to recover what he lost as a result of the lawyer's negligence -- so if he would have recovered punitive damages, why not make the lawyer responsible for that as well?
Here's an article from the Federalist Society about the activism of the Ohio Supreme Court in the period from 1995 to 2002. It's not exactly path-breaking, and some of the arguments are hard to quibble with: for example, the Court's decision in Scott-Pontzer, which allowed an employee to recover under his employer's uninsured motorist coverage, even when the employee was driving his own car and wasn't on the job, was arguably one of the most ridiculous decisions handed down by any court in the last decade.
On the other hand, we'll see whether the Court has tilted in the opposite direction in the next year or so, when the recent changes in the tort law start coming before it. One of those will be interesting to me, at least; I just got done writing a brief on summary judgment in an intentional tort case against an employer. In April of 2005, the legislature passed RC 2745.01, which states that an employee can't sue for an intentional tort unless he can show that the employer knew an injury was "substantially certain," and defines that phrase as meaning that "an employer acts with deliberate intent to cause an employee to suffer an injury, a disease, a condition, or death."
That definition, of course, is an employer's wet dream (I was tempted to phrase it that way in the brief, too, but cooler heads prevailed); it would preclude just about any tort claim short of the boss attacking an assembly line worker with a ballpeen hammer. In fact, the legislature twice before passed identical language in the 1990's, and the Supreme Court ruled it unconsitutional on both occasions. We'll see what happens this time around.
Last, if you're looking to emulate someone, try Walter Seward. As this story tells us, Walter recently celebrated his 110th birthday, and is the oldest living graduate of Harvard Law School. He passed the bar in 1924, and enjoyed it so much that he "continued to practice on a part-time basis as he neared 100."
Frankly, if any of you see me walking around the Justice Center when I hit my 70's -- another fifteen years from now -- you have my permission to drag me across the street and have me probated.
If you're thinking of pinning any future disciplinary transgressions on the old "sexual addiction" defense, be forewarned: the Supreme Court ain't buyin' it. The other day they suspended the "Naked Photographer," an attorney who wound up pleading guilty to 53 counts of sexual imposition and public indecency, resulting from his practice of accosting women while he was naked and taking a picture of their reaction to him. He also acknowledged that he'd touched several of the women, and that "maybe" he'd masturbated in front of the first couple of victims. (What, you'd forget something like that?) He brought in a note from his doctor saying that his conduct was the result of a "sexual addiction," but wound up with a two-year suspension anyway.
The most sobering part of the story was that "while engaging in these activities, respondent was employed by the Speaker of the Ohio House of Representatives as Legal Counsel for Taxation and Education." Thomas Jefferson thought we should have a revolution every couple of generations. I think we're overdue.
The 2nd District recently reversed a conviction for intimidation where the defendant "made certain reprehensible statements to the arresting officer threatening physical violence," concluding that the comments weren't meant to intimidate but were merely "an expression of fury at his being arrested." I've had a number of disorderly conduct cases involving comments made to a police officer, and it's really amazing what you can get away with saying to a cop. A good review of the do's and don'ts can be found in this 8th District case from 1993. That's hardly an exhaustive list; what's proper etiquette when berating a police officer is decided, as we say in the law biz, on a case by case basis, and sometimes there's not a lot of logic in it. You can find cases holding that calling officers "a bunch of fucking idiots" isn't punishable, and other cases holding that saying they're on the take is.
Finally, there's another 2nd District case which held that a judge abused his discretion in denying a defendant's motion for treatment in lieu of conviction, on the grounds that defendant had a previous misdemeanor conviction. Essentially, according to the court, if the defendant meets the nine criteria in RC 2951.041(B), the court has to grant the motion, and if he doesn't, the court has to deny it. Not sure I buy it -- basically, that leaves the judge with no discretion, and that's not the reading I get from the statute -- but it could be helpful. As I mentioned a few months ago, there are advantages to using treatment in lieu instead of the prosecutor's Early Intervention Program.
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