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.
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