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January 2007 Archives

Calling the doctor

One of the more favored pastimes of the 8th District seems to be Allstate Smackdown.  The insurance company has served as a punching bag for the court on numerous occasions:  at least three times this year, the court has held that the company's routinely miserly pretrial offers merited an award of prejudgment interest.  (I mentioned one here.)

Last week, the bete noire of the plaintiff's bar got another comeuppance in Hutsell v. Allstate, a UMI claim which Allstate appealed because a jury had the temerity to award $9,000 to the plaintiff.  The company's major contention was that the trial court erred by permitting plaintiff's counsel to point out in summation that Allstate could have required the plaintiff to submit to an independent medical examination, but didn't.  The court wasn't buying, and affirmed the judgment.

There were several interesting things about the decision.  First was Allstate's argument, which was based upon the "uncalled witness" rule.  Never heard of it?  Neither had I.  Turns out it's a rule of evidence which states that if a party has the sole power to produce a witness and doesn't, it can be inferred that the witness would give testimony unfavorable to that party.  I'm not sure how it applied to this case, and if I were a more industrious sort I might task myself the to-do of schlepping over to the courthouse and reading the briefs to see what argument Allstate advanced.  It apparently wasn't a good one, being based solely on a Federal 5th Circuit decision which, as the concurrence points out, rejected the rule.  (I did read the 5th Circuit case, and rule apparently stopped being good law about 30 years ago.)

The other interesting thing about the opinion is that it never gets around to answering the question of whether the plaintiff's argument was permissible.  Instead, the court held that the latitude afforded counsel in closing argument was within the discretion of the trial court, and that a case shouldn't be reversed on that basis unless the argument was "reprehensible and heinous."

A couple of points.  First, "heinous" (dictionary definition:  "grossly wicked, abominable, shockingly evil") is setting the bar pretty low.  There have been numerous cases reversed for prosecutorial misconduct in closing argument that certainly couldn't have been classified in that fashion.  It's not a perfect match; the prosecutor is not viewed the same way as a civil lawyer (or a criminal defense attorney, for that matter), and there are some due process concerns in a criminal case that aren't present in a civil one.  Still, it seems a bit much to imply that counsel can get away in summation with anything short of performing a human sacrifice.

The second point concerns a problem I have with the "abuse of discretion" standard.  That standard exists, it seems to me, to cover the innumerable judgment calls a judge  has to make in the course of a trial; for example, how far does he let an attorney go in exploring bias on cross-examination?  Essentially, it covers situations where reasonable people could differ on what should be done, depending on the circumstances, and you don't want to have the court of appeals substitute its opinion on that for the trial court's.

But too often, appellate courts use the abuse of discretion standard when it's really not a judgment call, and I think this was one of them.  Either it's improper to make the argument that plaintiff did, or it's not; the legitimacy of the argument isn't dependent on circumstances.  Hutsell doesn't decide that question; another trial judge could sustain an objection to that argument, and citing Hutsell to him wouldn't do you any good.  If the court felt that the argument was proper, it should have said so, and if it didn't but wanted to reach the same result, it could have sought refuge in that other decision-avoidance sanctuary, harmless error.  But it should have answered the question.

And my two cents is that the answer should've been yes.  The invariable defense argument in these cases is that the plaintiff wasn't hurt as badly as he claims.  In that light, it doesn't seem unfair for the plaintiff's lawyer to point out that the defense had the right to have their own doctor examine the patient to buttress that claim.  And let's face it:  a strategem in these cases, especially by Allstate, is to force plaintiffs to trial in small-value cases, knowing that the costs of trying the case -- spending $1500 or more for the doctor's deposition -- will often induce a settlement.  Essentially forcing the defense to shell out money for its own doctor, or face the prospect of a jury wondering why it didn't, would even the playing field at least a bit.

Continue reading "Calling the doctor" »

Three from the Second, Part II

I mentioned last week that there were three recent decisions out of the 2nd District that are worth looking at, and discussed one of them.  I'll hit another one today.

That case is State v. Gardner, in which the defendant had been convicted of aggravated burglary.  The events leading up to the crime started out innocently enough:

The events giving rise to this matter began on Monday, April 25, 2005, when Ebony Lee phoned Gardner and asked to buy some marijuana from him.

Things went to hell in a hurry after that, though, with the defendant forcing his way into the house and beating the victim, then returning a little while later, breaking the door down, and firing several shots at the victim.

The defendant asserted various and sundry claims of error, all of which were dismissed out of hand, except one.  The aggravated burglary statute essentially prohibits breaking into a premises with the "purpose to commit any criminal offense."  That criminal offense could be anything, of course, from theft to domestic violence to murder.  The trial judge hadn't given the jury any instructions on what the lesser offense might be, and the appeals court held that was plain error. 

Why?  The state has to prove every element of the offense beyond a reasonable doubt.  Proving the underlying criminal offense is an element of aggravated burglary.  If the underlying offense isn't specified, there's a possibility that the jurors might agree that one was committed, but disagree as to which one it was.  If the jurors don't unanimously agree on which underlying offense was committed, that means they haven't unanimously found an element of the offense, and that's a denial of due process.

I'm not sure I agree with the court's reasoning, especially under the facts in this case, although it should be noted that the Ohio Jury Instructions mandates that "the court must instruct the jury on the elements of the underlying criminal offense together with the meaning of pertinent words and phrases."  There's a case to the contrary out of the 8th District, but the instruction by the judge was more complete than in Gardner.  There's only one other case on the subject, and I wouldn't be surprised to see the issue go to the Supreme Court.  But if you've got an aggravated burglary case, it's a must read.

Continue reading "Three from the Second, Part II" »

Case Update

The only decision from the Ohio Supreme Court this week was one involving the regulation of cellular phone service, and the day I start reading PUCO decisions is the day I stick a fork into a toaster.  One note about the Supreme Court, though; a few weeks back, I'd mentioned that the Court was scanning all documents, so that you had on-line access to them.  Turns out that they're being scanned in image format, which means that you can download and read them, but you can't edit them as you would a normal word-processing document.  Now, on to the cases:

Civil.  1st District reverses trial court for failure to grant protective order for trade secrets, holding that trial court's statement "with discovery issues, I let people get what they want" wasn't quite the detailed analysis required under Rule 26(C)... Husband who learned child he'd supported to majority wasn't his didn't have claim against biological father for unjust enrichment, 9th District rules... 10th District reverses award of $6000 in attorney fees for tenant who recovered $700 for security deposit wrongfully withheld, says that fees must bear a relationship to damages recovered... 12 District holds trial court abused discretion by refusing to consider social security benefits in determining spousal support when benefits were sole source of husband's income...

Criminal.  Several cases on guilty pleas:  1st District holds that Foster has no effect on determining whether plea was voluntarily made, where plea was made before Foster; 8th District upholds guilty plea, says court not required to advise defendant of right to testify or availability of self-defense; and where case remanded for resentencing, trial court had no jurisdiction to entertain motion to vacate plea where that issue not raised on appeal, 3rd District holds...10th District rules that defendant opened door to testimony by detective that he was "sure" defendant was the shooter, by calling detective as witness and asking him if he'd taken gunshot residue tests from other people at scene...

And the Kenny Rogers award for You Gotta Know When to Hold 'Em, You Gotta Know When to Fold 'Em for this week goes to the defendant in State v. Brooks:

After imposing the one year sentence, appellant requested three days to get his affairs in order.  The trial court refused, stating, "Not after what you did when you were out, you think I'm going to trust you again?"  Appellant then asked, "So I have to go to prison with nothing?"  The trial court responded, "You go sit down, we will make sure you've got something when you go to prison. You will have your orange jumpsuit, go sit down. You don't show me nothing, man."  Thereafter, the following occurred:

"THE DEFENDANT: (Unintelligible mumbling).

"THE COURT: It's about time for resentencing in this case. I misjudged this man. I thought he was worthy of a minimum sentence.

"THE DEFENDANT: I am.

"THE COURT: No. The sentence is two years in this case. He is unrepentant. He is a jerk. He thinks the world owes him a living. It doesn't. The sentence is two years, Mr. Brooks."

The appellate court upheld the sentence.  Guess that taught the guy to unintelligibly mumble.

Meanwhile, "you don't show me nothing, man"?  Whatever happened to judicial decorum?  I guess it's fortunate that the judge didn't have to delve into his repertoire of "yo mama" jokes.

Continue reading "Case Update" »

Citizen's arrest, sentencing, and sex

Our Friday roundup finds former Ohio congressional candidate Paul Hackett emerging unscathed from a bout with the law over his "citizen's arrest" of three men who fled after they crashed their car into a fence near his home.  As this story relates, Hackett pursued them, armed with a 30-round assault rifle.  It's unclear exactly how he captured them, but when the police arrived, they were lying face-down on the ground around their car, with him standing nearby.  The grand jury briefly investigated Hackett, apparently on the question of whether one can use deadly force to apprehend someone for criminal damaging, a misdemeanor.  Threatening deadly force and using deadly force aren't the same thing, though, so the subsequent decision not to charge Hackett appears to be a proper one, considering the circumstances.  For those who are inclined toward similar Rambo-like exploits, however, keep in mind that Ohio law permits a citizen's arrest only for felonies.

The big decision from the US Supreme Court this weekend was Cunningham v. California, which struck down California's sentencing scheme.  The case involved a defendant who'd been convicted of sexually abusing his son.  California law provided for a sentence of 6, 12, or 16 years; the judge had to pick the 12 year sentence, unless he found certain aggravating or mitigating circumstances, in which case he could impose the higher or lower sentence.  That ran afoul of the Apprendi/Blakely/Booker trilogy, and that was that.  Linda Greenhouse of the New York Times -- and their coverage of Supreme Court cases is the best of any newspaper in the country -- has a good article about it here, and this article from Slate has another angle, pointing out how the Supreme Court cases might have actually harmed the movement for sentencing reform.

Maybe it's just me, but it seems that there are more criminal cases anymore involving people having sex with teenagers, except that the people who are being prosecuted are other teenagers.  Or, as this story about a Florida case shows, the teenagers themselves:  an appellate court ruled that a sixteen year-old girl could be adjudged delinquent under the state's child pornography laws for emailing a picture of herself having sex with her boyfriend to the boyfriend's email account. 

Much more appalling is the case of Genarlow Wilson, an 18-year-old Georgia honor student and star athlete, who is serving a ten-year prison sentence for having consensual oral sex with a 15-year-old girl.  Had the sex been vaginal intercourse, it would have been a misdemeanor, but oral sex fell under the definition of sodomy and triggered the far harsher sentence.  Here's a lengthy story on the case by ESPN, and here's some excerpts from the article, plus links to other stories about it, on the Sentencing Law and Policy blog.

Of course, it's not only teen-age sex that the law seeks to inhibit.  Over the past few years, a number of professions have taken steps to make sure that their members don't take undue sexual advantage of their clients.  Check out this hilarious post by Eugene Volokh of the Volokh Conspiracy on how Washington statutes affect the dating prospects of opticians and dental hygienists, of all people.  Seriously, it's a great read. 

There have been numerous disciplinary cases here in Ohio involving lawyers having sex with their clients.  My personal favorite is this one, where the Supreme Court handed down a one-year suspension to an attorney who'd had sex with a criminal client in a jail meeting room.  Like James Taylor, I've seen fire and I've seen rain, but unlike James, I've also seen female criminal clients and I've seen jail meeting rooms, and the thought of having sex with the former in the latter sounds about as appealing as going hunting with Dick Cheney.  And probably as dangerous.

Continue reading "Citizen's arrest, sentencing, and sex" »

Inventory searches and ghosts

I ran across a case on inventory searches a few weeks back while doing the updates.  As you know, several decades ago the US Supreme Court, in Opperman v. South Dakota, decided that vehicle inventory searches are an exception to the Fourth Amendment's warrant requirement.  The case, the 3rd District's decision in State v. Flynn, presents a good summary of the law on that subject.  Here's the money quote:

The Ohio Supreme Court has interpreted Opperman to require that, to be reasonable, a valid warrantless inventory search must be performed "pursuant to a standard practice and not merely as a pretext for an evidentiary search." Such a standard practice or policy need not be in writing so long as it is regulated by "standardized criteria or an established routine." However, a policeman's "bare conclusory assertion that an inventory search was done pursuant to police department policy is not sufficient, standing alone, to meet the state's burden of proving that a warrantless search was reasonable * * *. Rather, the evidence presented must demonstrate that the police department has a standardized, routine policy, demonstrate what that policy is, and show how the officer's conduct conformed to that standardized policy."

That's not quite as good as it sounds; for example, as Flynn notes, it doesn't require a copy of the policy to be introduced.  That got me to wondering whether there was a case out there in which a search was thrown out because the police failed to comply with the policy.

Turns out there is:  back in 1996, the Lakewood police arrested a guy and found a gun in the unlocked console.  The trial court tossed it, and the court of appeals affirmed, finding that there was an "ambiguity" in the policy regarding whether containers should be searched.  The Supreme Court, though, reversed it, finding that the policy, while prohibiting the search of locked containers, clearly permitted unlocked containers to be opened.

The name of the case was State v. Mesa

Cleveland Indians fans will of course recognize the defendant as Jose Mesa, the pitcher who allowed the Tribe's half-century of failure to continue unabated:  sent in to protect a 2-1 lead in the 9th inning of the 7th game of the 1997 World Series, he allowed the tying run to score in a game that the Indians would lose three innings later.  But then, if you're an Indians fan, I didn't have to tell you all that, did I?  Jose Mesa is all you had to hear.

By the way, in case you're wondering whatever happened to Jose, after saving 104 games for Cleveland -- but not the one that counted -- in his five years here, he was sent packing, only to resurrect his career elsewhere, saving 216 games for Seattle, Philadelphia, and Pittsburgh since then.  He signed with Detroit last month, so we'll have about a dozen opportunities this season to come down to the Stadium and remind him that we still remember him.  And maybe ask him what he has in his car.

Continue reading "Inventory searches and ghosts" »

Supreme Court Update

Yesterday and today is oral argument day in the Ohio Supreme Court, and there are a number of interesting cases on tap.  One of the most important is State v. Crager, where the defendant had been convicted of aggravated murder.  The state had introduced DNA evidence, but the scientist who had performed the DNA tests was on maternity leave at the time of trial; another scientist testified, based on the first one's notes.  The 3rd District tossed out the conviction, holding that since the scientist who testified wasn't the one who did the tests, that violated the rule in Crawford v. Washington; basically, the DNA results were "testimonial statements," and only actual confrontation at trial with the person who performed the tests would satisfy the 6th Amendment.  (I've done several posts on Crawford, including the ones here and here.)

The analysis and discussion in Crager is top-notch.  It acknowledges that numerous courts have viewed the term "testimonial" much more restrictively, and have let such evidence in under the "business records" exception.  But it recognizes, as some Ohio courts have failed to do, that simply because evidence falls within one of the hearsay exceptions doesn't mean it's admissible after Crawford.  It notes that Crawford defines  testimonial statements as ones "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," and that this clearly qualifies. 

I'm not sure of the outcome -- keep in mind Bensing's Rule about handicapping criminal appeals to the Supreme Court: take the state and give the points -- but Crager should be read just for its concise and cogent treatment of the Crawford question

A couple of other cases merit mention.  In Celmer v. Rodgers, the 11th District had upheld the trial court's allowing an expert witness to testify in a medical malpractice case, despite the fact that he hadn't practiced in seven months.  The court adopted a loose interpretation of Evidence Rule 601(D)'s requirement that an expert in such a case had to "devote at least one-half of his or her professional time to the active clinical practice in his or her field of licensure," finding that the rule was more directed toward determining the expert's past experience rather than present activity.

This is probably a valid point; as the court notes, strict interpretation of the rule would permit a novice to testify, while someone with decades of experience who'd recently retired would be barred.  Once you eliminate the "present" criterion of the rule, though, it's hard to see what you've got, except the unfettered power of the trial court to determine whether the expert has sufficient qualifications to be permitted to testify. 

This points to more of a problem with the rule than the decision, however.  While the trial court always makes the initial determination of expert witness competency, that usually involves little more than determining that the expert has satisfied the credentialed qualifications his profession imposes; beyond that, it's a question of how much weight the jury decides to accord his testimony.  As the court points out, the rule here was adopted to prevent "hired gun" witnesses.  Why shouldn't the jury be allowed to gauge the reliability of those witnesses?  If a jury can determine that someone who's been in practice only a few years is less credible, why can't they be entrusted to determine that someone who makes a living testifying for plaintiffs is less credible, too?  Given the abysmal success record for plaintiffs in medical mal cases, the rule arguably doesn't so much address a problem as demonstrate the willingness of our lawmakers to kowtow to the insurance lobby.

A final case of interest is Ignazio v. Clear Channel, where the 7th District held that a provision in an employment contract requiring arbitration of all disputes was invalid because it did not provide that the arbitration was final and binding.  The agreement here allowed either party to file an appeal from the award to "a court of competent jurisdiction, where the standard of review will be the same as that applied by an appellate court reviewing a decision of a trial court sitting without a jury."  Basically, the court found that since the agreement allowed much more expansive review than the arbitration statutes, RC 2711.10 and 2711.11 (which permit review only for things like fraud), it wasn't "arbitration" within the meaning of Ohio law, and thus was not enforceable; essentially, because it wasn't "arbitration" under the Ohio statutes, it wasn't arbitration at all, and the plaintiff was left with a court remedy.

The Supreme Court could decide it on that narrow issue -- which was left unresolved by an earlier plurality opinion of the Court -- but how it addresses the issue of arbitration might be of some significance, too.  As I've noted in previous posts, such as this one and this one, the courts have adopted a mixed posture toward arbitration, oftentimes exalting it as a means of resolving disputes outside the court process, at other times strictly scrutinizing it to make sure that it's not used to screw consumers.  A little too effusive praise for the arbitration process by the Supreme Court might inhibit that latter tendency, which would be unfortunate, because, too often, arbitration clauses are used to screw consumers.

Continue reading "Supreme Court Update" »

Three from the Second: Part I

There were a trio of decisions from the 2nd District in the past couple of weeks that merit some mention.  I'll address one of them today.

Can the state prove a drug possession case if it no longer has the drugs?  I'd think so; in fact, just the other week I did an appeal where the trial court had 29'd one of two possession counts because the state didn't introduce the drugs into evidence.  The court comes to a different conclusion, though, in State v. Brown.

Actually, Brown addressed the issue only tangentially; the question there was whether the case had to be dismissed on due process grounds because the state had inadvertently destroyed the drugs.  I wrote about this issue before in connection with destruction of the videotape of a DWI arrest, and the court here applied the same test.  If the evidence is "materially exculpatory," its destruction requires dismissal, regardless of the circumstances under which the evidence was destroyed.  But

when evidence is only potentially exculpatory, the destruction of such evidence does not deprive an accused of due process unless the police acted in bad faith when destroying the evidence.

The defense attorney tried to argue that the actual drugs would be useful at trial:

"So not just for the reasons that it's not available for independent testing, but what stands out the most for me is all my cross examination would be based on what that baggie looked like, what kind of package it was in, what the drugs looked like, and whether they were, in fact, truly visible or were found as a result of possible an illegal search. We didn't get that opportunity and don't have that opportunity."

Unfortunately, the court had already overruled a motion to suppress at this point, and so the legality of the search wasn't an issue at trial.  The defense hadn't requested an independent examination of the drugs, and the lab report indicated the substance was cocaine.  The court rightly concluded that meant the evidence wasn't inherently exculpatory, requiring proof of bad faith.  Since the destruction was inadvertent, due process wasn't violated.

The court went a little overboard at the end, concluding that the "trial court erred in granting Defendant's motion to dismiss when the evidence was neither exculpatory nor potentially exculpatory."  It didn't have to reach the latter question; as noted, even if the evidence had been potentially exculpatory, dismissal wouldn't have been justified because no bad faith was shown.

The court did address the issue of how the state could prove the crime without the drugs, but indicated that would be a jury question:

Ironically, the most significant exculpatory feature of the destroyed evidence is the very fact of its destruction. The State's error in destroying the evidence, which denies the jury an opportunity to see what it actually looks like, preponderates in the Defendant's favor. Whether the error is effectively exploited to his benefit can only be resolved by a trial of the possession of cocaine offense with which Defendant was charged.

I still had a problem getting my head around the idea that the state can prove a drug possession charge without the drugs, so I did some more digging.  Apparently they can:  I came across this 8th District decision from 2003 where something similar had happened.  The defendant had been charged with possession in 1992, then went capias; by the time he was captured and the case resumed in 2002, the drugs had been destroyed.  The court ruled the same way the 2nd District did in Brown:  the evidence wasn't exculpatory, so the destruction didn't prejudice the defendant, and the case could proceed on the testimony and the lab report.

You learn something new every day.

Continue reading "Three from the Second: Part I" »

Courts Update

Nothing of significance this week in the Ohio Supreme Court.  The US Supreme Court held that the statute which provides for deportation of an alien who commits a theft offense where the potential penalty is a year or more in prison also applies to aiders and abettors.  In the Ohio courts...

Criminal. 2nd District holds that Defendant bears burden of showing he lacked mental capacity on issue of voluntariness of confession... 1st District rejects ex post facto argument with regard to Foster resentencing (an argument I discussed here), holds that issue is really not ex post facto clause, but due process... 9th District upholds trial court's determination that motion to suppress filed 13 days before trial, but 49 days after arraignment, was untimely...

Civil. 1st District upholds right of village to require landlords to obtain rental permits and submit to inspections, overruling statutory and constitutional challenges... 3rd District holds that where juvenile court determines parentage, but parties subsequently marry, juvenile court loses jurisdiction over all child support issues... Employer not liable for assistant manager's requiring employees to submit to strip search because manager believed they'd stolen her jewelry, 10th District holds; respondeat superior not applicable in intentional tort case since manager's act didn't benefit employer...

One case deserves a little more extensive treatment.  In State v. Harper, the defendant faced several drug counts, plus one of intimidation of a witness under RC 2921.04(B), a third degree felony.  As part of a general plea bargain, the state amended that count with the attempt statute, making it a fourth degree felony.

The 3rd District vacated the plea, finding that the crime of intimidation already, by its very wording, involves an attempt ("no person... shall attempt to influence, intimidate, or hinder a witness..."), and thus the defendant was pleading to an attempt to attempt to commit a crime, which isn't a cognizable offense under Ohio law.  The first thought I had upon seeing the case was how it might affect plea bargains to "attempted" felonious assault, since the base offense also includes an attempt ("cause or attempt to cause... serious physical harm...").  The offense of robbery also incorporates an attempt. 

That's a possible scenario, and several courts have vacated pleas on that basis.  The 8th District, in several cases, has refused to do so, because the defendant benefited from the plea bargain, and thus couldn't show prejudice.  That's probably the better argument, as the dissent in Harper points out.

Finally, we have State v. Stone, where the defendant wound up with a four-year prison sentence instead of community controls because he didn't show up at the probation department to determine his eligibility for a drug program.  He tried to claim that his counsel was ineffective for not making sure that he did show up, but the appellate court rightly reminded him that he was a big boy now, and bore the responsibility of ensuring his own attendance.  As Woody Allen pointed out long ago, 90% of life is just showing up, and that's especially true if you're on probation.

Continue reading "Courts Update" »

Spanning the globe

First, let's update some stuff.   Earlier this week, I wrote about Cully Stimson, the Pentagon official who'd suggested a boycott for law firms doing pro bono work for the Guantanomo detainees.  Stimson issued a formal mea culpa a couple of days ago, acknowledging that his comments "left the impression that I question the integrity of those engaged in the zealous defense of detainees in Guantanamo."  Well, yeah, they left that impression, maybe because that's what he said.  Still, the apology was appropriately abject. 

And a month or so ago, I did a post on Kathryn Johnston, an 88-year-old Atlanta woman who was gunned down when she opened fire on police who were conducting a drug raid on her house.  I mentioned at the time that the informant who supposedly provided the information that served as the basis for the warrant for the raid claimed that he'd never bought drugs at that house, and that the police had told him to lie and say that he did after the shooting.  Turns out that may be true, at least according to reports of what one of the officers involved in the raid has told FBI investigators.  You can read about it here

Another raid that went awry, albeit not with such tragic consequences, is recounted in this decision from the 9th Circuit Court of Appeals last November, upholding an award of $138,000 against three Tacoma, Washington policemen.  There's some argument that the possibility of damage awards is a more adequate deterrent to police violations of the Fourth Amendment than the exclusionary rule; I don't buy it, but it most probably worked that way in this case.  Here are the basics from the first paragraph of the court's opinion:

The facts are remarkable. Plaintiff, Susan Frunz, and her two guests were in Frunz's home in Tacoma, Washington, when police surrounded the house, broke down the back door and entered. The police had no warrant and had not announced their presence. Frunz first became aware of  them when an officer accosted her in the kitchen and pointed his gun, bringing the barrel within two inches of her forehead. The police ordered or slammed the occupants to the floor and cuffed their hands behind their backs--Frunz for about an hour, until she proved to their satisfaction that she owned the house, at which time they said "never mind" and left.

One of the more satisfying aspects of the case is that the Court was so bewildered by the fact that the defendants had the temerity to appeal -- "A prompt payment of the verdict, accompanied by a letter of apology from the city fathers and mothers, might have been a more appropriate response to the jury's collective wisdom" -- that they gave them and their counsel fourteen days to show cause why they shouldn't be assessed double costs and attorney fees for filing a frivolous appeal.

Speaking of the 9th Circuit, although I find no problem with this decision, the court does have a reputation for being one of the most-reversed in the country; its nickname among conservatives is the "9th Circus."  That reputation may be deserved.  Of the 11 decisions handed down so far by the Supreme Court this term, 6 have been 9th Circuit cases.  All of have been reversed, 4 unanimously and 1 summarily.  The only thing that kept the 5th decision from being unanimous was a dissent by, of all people, Scalia.

Speaking of courts -- and yes, I realize that my segues are getting increasingly tenuous -- check out this motion for continuance in a case in New Orleans.  The reason for seeking a delay of the trial?

As this Court knows, the New Orleans Saints will play in the National Football Conference Championship game - the first such game in the franchise's forty-year history - against the Chicago Bears in Chicago, Illinois on January 21, 2007 at 2:30 p.m. In order to accommodate all fans, including the great majority of the jury pool, the parties involved in this case, and in order to ensure that a full jury pool appears on the first day of trial, Defendants request that the beginning of trial be pushed back two days to January 24, 2007.

You might want to copy that, so that you can use it when you need a continuance because the Browns are in a championship game.   Or, better yet, copy it and put it in a safe place so that your great-great-grandchildren can use it when the occasion arises.

Well, at least you won't be bothered by cigarette smoke while you're at the game, since the Browns have announced that they've prohibited smoking at the stadium because of the passage of the public smoking ban in November.  As this post from the Cuyahoga County Law Library's web site shows, though, the ban's implementation has had anything but smooth sailing.  Of course, this might be one of those things that only Ohio could screw up this bad. 

And speaking of Ohio... Well, we're not.  We'll speak of Saudi Arabia instead.  A citizen of that country is the hands-down winner of this week's award for Weirdest Google Phrase for someone landing on this site:  somebody from Riyahd got here by entering the phrase "briefcase sex."  Just a guess, but I'm betting he was disappointed.

See you on Monday.

Continue reading "Spanning the globe" »

Probation conditions and plea withdrawals

Let's take a look today at a couple of recent off-beat criminal cases.

First, there's State v. Voelker, out of the 1st District, where a defendant who'd pled guilty to a fourth-degree misdemeanor domestic violence objected to the conditions of his probation, which included alcohol counseling and random drug tests.  What's off-beat about it is that the court of appeals reversed the trial court's imposition of those conditions because it found there was no evidence showing that alcohol or drugs had any connection to the offense.  Of special interest is this paragraph from the decision:

Despite the trial court's broad discretion in imposing probation conditions, its discretion is not completely unfettered.  When considering whether a probation condition is related to serving the interests of justice, rehabilitating the offender, and ensuring the offender's good behavior, a court should consider "whether the condition (1) is reasonably related to rehabilitating the offender, (2) has some relationship to the crime of which the offender was convicted, and (3) relates to conduct which is criminal or reasonably related to future criminality and serves the statutory ends of probation."

The main reason for the court's decision appears to be the concern that Voelker, who spent substantial time working out of state, would lose his job if he had to comply with the conditions.  Still, one wonders why the court didn't make more of an effort to limit its decision to those facts.  Imposition of random drug testing, for example, is routinely imposed on defendants without any consideration, let alone showing, that drugs played any role in the offense, yet Voelker can be read to prohibit that practice. 

It's doubtful it would survive such an interpretation, of course.  It might be a nice decision to have handy in a case in which a judge imposes some unusual probation conditions, but beyond that, it's of dubious value.

The second interesting decision is one just a couple weeks ago in State v. Fugate, where the 2nd District puzzled over, but did not resolve, the question of what standard should be used in ruling on a motion to withdraw a plea where there had been an agreed sentence.  In plea withdrawals, as in comedy, timing is everything:  if the motion is filed before sentencing, the motion should be liberally granted, but after sentencing, it should be granted only to "correct a manifest injustice."  The reasoning behind that is that otherwise, defendants could plead guilty and then seek to withdraw the pleas if they were dissatisfied with the sentence.

Even though the defendant in Fugate sought to withdraw the plea before sentence was imposed, the trial court applied the post-sentence standard, holding that was appropriate because it was an agreed sentence.  The appellate court puzzled over which standard to use in an agreed sentence case, and finally punted on the issue, concluding that this really wasn't such a case because there'd merely been an agreement to cap the sentence at a maximum of ten years. 

The court's puzzlement is puzzling.  A pre-sentence motion to withdraw should be treated the same regardless of whether or not there's an agreed sentence.  True, in one case the defendant knows what the sentence is, and in the other he doesn't, but in both situations, we know the motion isn't motivated by discovery that the sentence is stiffer than he anticipated, which is the whole reason for imposing a stricter standard on post-sentence motions.

It's not going to come up often, because in most situations in which there's an agreed sentence, the sentence will be imposed immediately, but if it does, this is something to keep in mind.  One other thing Fugate mentioned in passing:  if the defendant skips out on sentencing and is subsequently recaptured, there's an argument to be made that if he seeks to withdraw the plea at that point, it's subject to the much stricter "manifest injustice" standard, because he knows that he's going to get a worse sentence than if he would have showed up for sentencing when he was supposed to.

Continue reading "Probation conditions and plea withdrawals" »

Another foray into sovereign immunity

About six weeks ago, I detailed the 8th District's adventure into the wilderness that is Ohio sovereign immunity statutes.  That case, O'Toole v. Denihan, involved a suit against the Department of Children and Family Services over their failure to properly investigate claims of child abuse prior to the beating death of a a 4-year-old.  I mentioned at the time that while the decision probably came to the correct result, its analysis of the sovereign immunity statutes was not as rigorous as it could have been.

The court tackled the issue again in Rankin v. Children Services, a decision two weeks ago involving an equally appalling incident:

On July 23, 2003, Martin had a supervised visit with D.M. [his 3-year-old daughter].  Despite prior warnings not to allow any of Martin's activities with D.M. to go unsupervised, during the course of this visitation, Martin was allowed to take D.M. into a private restroom where he sexually assaulted her. Afterwards, Martin took D.M. back to the visitation room and placed her on his lap. He then placed a jacket over her lap and placed his hand under her clothing and fondled her genitals. Although Martin was under surveillance at the time, at no time did anyone from DCFS remove D.M. from Martin or contact the police.

While some courts have suggested that the Delphic riddles posed by the sovereign immunity statutes are only slightly less daunting than string theory, it's actually not quite that bad.  Basically, here's how it goes:  the government is immune from suit (RC 2744.02(A)), unless the conduct falls into one of the five exceptions under 2744.02(B).  But even if it does fall within one of those five exceptions, the government can still be held immune if the conduct falls within one of the seven items listed in 2744.03.

Without going into detail, the problem in Rankin was that the none of the five exceptions to immunity appear to apply.  So the plaintiff got creative, and the court bought into it:  it reversed the trial court's grant of summary judgment, finding that sovereign immunity could be overcome by the "special relationship" exception to the rule.  That exception, according to the court, exists when there is

(1) an assumption of an affirmative duty by a political subdivision; (2) knowledge on the part of the political subdivision or its agents that inaction could cause harm; (3) a direct contact between the political subdivision's agents and the injured party; and (4) that party's justifiable reliance on the political subdivision's affirmative undertaking.  

Again, this is a morally proper result, but the court's method is problematic: it's not clear that the exception the court relies upon even exists.  The "special relationship" exception actually was part of the "public duty rule," both of which are discussed in this 1987 Ohio Supreme Court case.  The problem is that the case arose before the sovereign immunity statutes were enacted, and it's not clear whether the whole concept survives them.

One other problem with Rankin is that it concluded that the individual defendants could be held liable under the exception in 2744.03 for "reckless" conduct, the same conclusion they reached in O'Toole.  As I pointed out there, though, reckless conduct is not a basis in itself for imposing liability; before you even get to that, you have to find that immunity is removed under one of the five exceptions of 2744.02(B).

This probably isn't the last word on either of these cases:  the Department's already filed a memorandum asking the Supreme Court to review O'Toole, and similar action is likely in Rankin.

One thing reading those cases did do for me, though, was reaffirm my conviction that I'd move to Brazil before I'd let Children's Services get within 100 yards of my kid.

Continue reading "Another foray into sovereign immunity" »

First, let's kill all the lawyers

As the legions of faithful readers of this blog have probably figured out by now, I'm a fairly opinionated sort.  When I first thought of writing a blog, I briefly contemplated doing a political one.  I chose to do a legal one instead, and although there are any number of legal issues with political overtones, I decide to avoid those for the most part, and stick to Ohio law, keeping my opinions to myself on those issues.

Until this weekend, when I read the comments of Cully Stimson, a Pentagon official who holds the title of Deputy Assistant Secretary of Defense for Detainee Affairs.  In an interview with Federal News Radio the other day, Stimson launched into a discussion of the major law firms which are providing pro bono legal assistance to the Guantanamo detainees:

Actually you know I think the news story that you're really going to start seeing in the next couple of weeks is this: As a result of a FOIA [Freedom of Information Act] request through a major news organization, somebody asked, 'Who are the lawyers around this country representing detainees down there,' and you know what, it's shocking.

And who should be shocked about it?

I think, quite honestly, when corporate CEOs see that those firms are representing the very terrorists who hit their bottom line back in 2001, those CEOs are going to make those law firms choose between representing terrorists or representing reputable firms, and I think that is going to have major play in the next few weeks. And we want to watch that play out.

We certainly do.  And lest there be any doubt about who's wearing the black hats here, Stimson hinted darkly that instead of this being done pro bono, somebody -- somebody, oh, who maybe uses a prayer rug and faced east five times a day -- could be providing quid for the quo:  when asked who was paying the firms for the work, Stimson replied,

It's not clear, is it?  Some will maintain that they are doing it out of the goodness of their heart, that they're doing it pro bono, and I suspect they are; others are receiving monies from who knows where, and I'd be curious to have them explain that.

At this point, a confession:  I am not the most impartial of political observers.  I became convinced at least six months ago that President Bush has taken to roaming the halls of the White House at night and talking to the pictures; I watched his speech last week mainly to see if he'd be rolling steel balls in his hand.  So it might be that I am exaggerating the import of Stimson's comments.  Maybe he's really some insignificant toady, his impressive-sounding title actually putting him no higher on the organizational chart than the Deputy Assistant Secretary for Pentagon Cafeteria Luncheon Meat Selection.  Maybe it's no big deal.

I don't think so, though.  What I do think is this:  any administration which had a shred of respect for constitutional liberties would quickly usher Stimson out the door, telling him that there was no place for his odious threats of a boycott against lawyers who are undertaking to represent the undesirables, a tradition that goes back to John Adams defending the British soldiers accused in the Boston Massacre.

But this is an administration which has insisted that it has the right to declare anyone an enemy combatant, to hold them indefinitely without trial or charges, to engage in surveillance without warrant or other authorization, all without interference or oversight by the other two branches.  A few days before he gave his speech last week announcing Operation Let's All Clap Our Hands and Wish Real Hard, our Maximum Leader issued a signing statement to a postal appropriations bill, informing us that he reserved the right to open anybody's mail if he deemed it necessary.

So I don't think Mr. Stimson will have to worry about hitting the unemployment line.  I guess he figured that after the Administration took on the 4th Amendment and habeas corpus, the 6th Amendment was fair game, too.

One thing I do know, though.  One of the firms that does the pro bono work for the detainees is the Washington firm of Paul, Weiss, Rifkind, Wharton & Garrison.  They're also representing Scooter Libby, the aide to Dick Cheney who goes on trial this week in the Valerie Plame affair.  Gotta figure that Scooter's not going to be participating in the boycott.

And they say irony is dead.

Continue reading "First, let's kill all the lawyers" »

Weekly Update

If you do Federal criminal law, you know that prior to Booker, the trial judge had to give notice of whether he was considering imposing a sentence above the guideline range. A decision by the 6th Circuit the other day in US v. Collins, 469 F.3d 572, holds that's still required, even though the guidelines are now advisory.

Now, on to the Ohio courts.

Civil.  "I'll take Torts for $400, Alex":  9th District finds that there is a cause of action in Ohio for "hostile housing environment," while 6th District, in medical malpractice case, holds there is no cause of action for "negligent referral"... 8th District rules that guardian ad litem in custody case has absolute immunity from suit... Thorough discussion of when counsel must be disqualified because of necessity of being a witness in this 10th District case... 12th District explains what constitutes a continuing trespass for statute of limitations purposes... Failure to attach schedule of assets voided prenuptial agreement, 1st District rules... Granting a motion to vacate a default judgment is not a final appealable order, says 5th District...

Criminal.  9th District upholds trial court's rule that negotiated pleas would not be accepted on day of trial... 6th Circuit holds that Alford plea waives right to appeal suppression ruling, just as ordinary plea would... 1st District upholds Cincinnati's anti-panhandling ordinance against constitutional challenges... Excellent discussion of requirements trial court must observe for allowing defendant to proceed pro se in this 9th District case...

Finally, this week's Chutzpah Award goes to the defendant in State v. WalshAfter becoming comptroller of a company, he persuaded them to hire him an assistant with whom, unbeknownst to the company, he was having an extramarital affair.  The two of them ripped off the company for almost $200,000, much of it by forging company checks to pay the defendant's credit card debts.  On appeal,

appellant claims that his unauthorized execution of corporate checks to pay off his personal credit cards actually should be interpreted as an "interest-free loan" from appellant to [the company]. Appellant maintains that due to poor financial performance by the company, appellant did not avail himself of salary increases to which he was entitled. Appellant claims it was less of a fiscal burden on the company for him to utilize corporate funds to pay off his personal credit cards in lieu of a salary increase.

Wherever the line is between creative lawyering and total bullshit, this one was well over it.

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The three R's: writing and rock'n'roll

It's the Friday odds and ends column, of course, as we scan the globe for... well, whatever.  And I do mean the globe.  Got a hit on my blog yesterday from someone in Israel, who had Googled the phrase, "fruit of the poisonous tree."  Not sure if he was researching the legal doctrine or the religious doctrine; if the latter, he was disappointed.

Came across an interesting decision out of the Federal Court in Massachusetts.  As many of you probably know, there's a Federal law which requires anyone convicted of a Federal felony (and certain other crimes) to give a sample of his blood to be stored in a DNA databank.  The defendant, who'd been convicted of social security fraud, objected, and the court agreed that this violated his Fourth Amendment rights.  The opinion, which can be found here, is a long read -- almost 50 pages -- but it's a masterful job, analyzing the issue from the historical perspective of the British general Writs of Assistance, which, as the name indicates, allowed general searches, and were the major impetus for our own Fourth Amendment's command that warrants "particularly describe the place to be searched, and the person or things to be seized."  Here's one of the final paragraphs of the opinion:

But the tapestry of constitutional protections that cover all Americans is woven with long threads, each section and each pattern revealing of the integrity of the whole. This holding seeks not to mend this fabric, but to preserve it. To preserve it, most directly, for the unsympathetic probationer who, despite a transgression against the law and against society, is now released to and embraced by that same law and that same society to the full extent reasonably possible. It is also preserved indirectly and with greater resonance for those who remain untouched by this individual invasion, but who suffer the collective erosion of their protection against arbitrary state action.

I'm not going to get into whether the judge was right or wrong, because there are arguments to be made on both sides, but damn, that's some good writing.  I've been doing this blog for almost eight months now.  I've read probably a hundred or so court decisions in that time, and skimmed God knows how many more, and it's a real pleasure to come across a decision which doesn't lapse into dry legal-speak.

Speaking of good writing, Kent Sheidegger over at Crime and Consequences took a look on Tuesday at Burton v. Stewart, the case pending before the US Supreme Court on whether Blakeley is cognizable on habeas corpus, and argued that it was the worst possible case for resolving that issue, because there are some monumental jurisdictional and factual issues that the Court would have to ignore before even reaching the question.  As Schiedegger put it,

Out of all the salmon swimming up Blakely River, why pick the one that's lying on its side gasping?

As someone once said, a man's reach should exceed his grasp, or what's a meta for?  And yesterday, the Supreme Court kicked Burton out on technical issues.

A case that will make it to the Supreme Court soon is the constitutionality of several new state laws which impose the death penalty for child molestation.  The ABA Journal takes a look at Louisiana's law, and the constitutional issues, here.

If you're contemplating a career change, you might want to check out the five law firms that managed to win a spot on Forbes Magazine's list of the 100 best companies to work for.  At Perkins Coie, a firm specializing in international law, "each office has it own 'happiness committee' that surprises attorneys and staff with spontaneous celebrations on Cinco de Mayo or Mardi Gras."  On the other hand, if you'd rather take the money and run, fax your resume to Nixon Peabody, which made the list because of its high rates of compensation:  the average associate makes $181,000.

Finally, if you're an aging boomer like me with a fondness for that old-time rock'n'roll, head over to Wolfgang's Concert Vault.  Once you register at the site (all you need is an email address), you get access to some 330 concerts from back in the 60's and 70's, which you can stream to your computer.  (High bandwidth is pretty much of a necessity).  As I'm writing this, I'm listening to the concert by Derek and the Dominos at the Fillmore East in October of 1970.  Let me tell you, if listening to Eric Clapton and the boys jam doesn't get you moving, call the morgue, because you're dead.  The best thing is you don't need to be an associate at Nixon Peabody to enjoy it:  it's free.

Catch you next week.

Continue reading "The three R's: writing and rock'n'roll" »

Consent, search, and eviction

At first glance, the result in the 8th District's decision a couple weeks back in State v. Hertzel looks straightforward:  The police were called to woman's home on her claim that her grandson had used her car without permission.  Although the car had been returned by the time the cops showed up, the woman told the officers that her grandson lived in the house, but that she'd given him an eviction notice a couple of weeks before because he'd failed to consistently pay rent and had caused her other problems.  She asked the police to remove him, and they obliged, escorting the young man to his room to get his things.  Once in the room, the officer sees some strange chemicals in the room, then spots a crack pipe on the dresser and... well, you've seen the end of that movie, haven't you?

The court had no difficulty upholding the search, finding that

On the evening of appellant's arrest, Hartman specifically asked Officer Greenway to aid her in removing appellant from her home. Greenway did not enter appellant's room with the intent to conduct a search -- his only purpose was to enable appellant to pack his belongings and then safely escort him out of Hartman's home.

Unfortunately, the decision completely ignores several questions, the first being whether the grandmother had the right to demand that defendant immediately vacate the home.  As anybody who's ever handled an eviction case knows, serving an eviction notice is merely step one in getting rid of a tenant:  you then have to file the forcible entry action, get a judgment, get an order of restitution, and have the bailiff throw the defendant's stuff out on the treelawn if he doesn't move out by the latter date.  There doesn't seem to be any dispute that the defendant was in fact a tenant, and if the grandmother would not have had the legal right to forcibly remove him from the premises at that point, it's hard to see how she can legitimately enlist the police to do that for her.

Even assuming she did, it's not at all clear that the police had the right to accompany him to his room.  There was no allegation that the defendant had consented to this, and the officer's justification for doing it -- that the grandson "exhibited odd behavior in the past, and he had a very silent reaction to his grandmother's order to leave" -- falls miles short of probable cause.

Then again, there are worse results than Hertzel out there for this type of situation, like this one from the 2nd District a few years ago.  The defendants were staying in a motel, and the motel owner decided that he didn't want them there, so he called the police to help him remove them.  The cops went along, the manager told the people to get out, and after about twenty seconds the police went in to escort them out, and found drugs.  Despite the fact that the people had paid their bill up to that point, the court held that their tenancy rights were immediately terminated when the manager told them to leave, and thus they had no possessory or privacy interest in the room when the police entered.  Now that's a bad decision.

Continue reading "Consent, search, and eviction" »

Public defenders v. private lawyers

This is why I like sociological research:  you find some fascinating stuff that you really didn't figure on.  Like this article which recently appeared in the Ohio State Journal of Criminal Law.  The (much) short(er) version is that the authors studied the outcomes of criminal cases in Denver to determine whether public defenders or private lawyers were more effective in getting their clients shorter sentences.  It turns out that private lawyers fared better:  their clients averaged sentences of three years less than those represented by public defenders.

This might be because public defenders wind up with defendants charged with more serious crimes, and they do:  a defendant charged with a serious crime is more likely to be unable to post bond, and thus can't retain private counsel.  But that didn't account for the difference here; in fact, when seriousness of the crime was taken into account, clients represented by public defenders fared even worse, doing five years more than their privately-represented counterparts.

And, it turns out, it's not because public defenders were worse lawyers.  They actually filed more motions than private attorneys, and their acquittal rates once in trial were every bit as good.

So what accounts for the difference?  A combination of two factors.  The first is that criminal defendants perceived private counsel as being more effective.  The second is that defendants do not fall neatly into one of two groups, the indigent and the non-indigent.  There's also a group the authors call the "marginally indigent," that is, people who would qualify for public defenders but who, in a pinch, can tap hidden resources or family and friends for enough money to hire private counsel.  So when do they do that? 

It turns out that the explanation, at least in part, is one that should put a smile on the face of all free-marketers and rational choice theorists: criminal defendants, just like any other consumers of services, appear to be making choices based on their rational assessments of costs and benefits.

Let's say you're charged with robbing a liquor store, they've got you on videotape, so there's no hope of beating the case.  Why bother depleting your resources to hire a lawyer to accomplish pretty much the same thing the public defender is going to do for free?  But if you're innocent of the charges, isn't it more likely that you'd tap those resources to hire a lawyer that you perceived would be more effective?

In short, the difference in result is because of self-selection by the marginally indigent:  public defenders wind up with the obviously guilty and other hopeless cases, while the more defensible cases gravitate toward private lawyers.  Keep in mind that doesn't just show up in conviction rates; cases in which guilt is questionable almost always end up in much better plea bargains, and thus shorter sentences.  Private lawyers get better results not because they're better lawyers, but because defendants think they're better lawyers and are willing to pay for the difference.

I'm not sure that the implications of that, as a public policy matter, are earth-shaking.  The authors themselves argue for nothing more than perhaps a more stringent application of indigency, so as to force the marginally-indigent guilty defendants into choosing private counsel.  That certainly would free up some public resources, but it's difficult to see how that would be put into practice; one's friends and even one's family do not have a legal obligation to pick up the tab for representing him in a criminal matter. 

But as I said, it's interesting from an intellectual aspect:  you wind up looking at things in a way that you hadn't anticipated.

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Vindictiveness and Foster resentencing

You're representing a client on a Foster sentencing remand:  the judge gave your guy, a first-time offender, three years on a third-degree felony, after making the findings justifying a more-than-minimum sentence, but the court of appeals vacated it because Foster declared the more-than-minimum findings unconstitutional.  A number of people, yours truly included, have noted the absurdity of this:  if the judge went to the trouble of making findings to impose more than the minimum sentence, it doesn't make much sense to remand the case for resentencing where he can impose more than the minimum sentence without making any findings at all.  But here's the tricky part:  while it's unlikely that the judge is going to give your client less time, can he give him more?

That was the exact situation faced a few weeks back by the 3rd District in State v. Wagner.  The defendant had been sentenced to 12 months on a fourth-degree felony, the sentence was vacated under Foster, and on remand the judge gave him 15 months.  As the court indicated, this raised the question of vindictiveness in resentencing.  Normally, if a judge hands down a stiffer sentence after an appeal, there's a presumption that it's retaliation for the defendant having exercised his constitutional rights.

That's only a presumption, and there's some big exceptions.  If the initial sentencing was on a plea, and the defendant then goes to trial and is convicted, all bets are off; the lack of acceptance of responsibility, plus what comes out at trial, is almost invariably sufficient to impose a stiffer sentence.  You might want to check out this decision last year from the 5th District, which discusses the law on vindictiveness in resentencing in more detail.

Still, the general rule is that the trial court has to state some reason for increasing the sentence.  Keep in mind that Foster itself might provide that reason.  If, for example, the judge gave the minimum sentence the first time around, it seems likely that he can overcome the presumption of vindictiveness by pointing out that he had to make findings before giving more than the minimum sentence before, and now he doesn't have to do that.

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Russ' Excellent Adventure

Normally, I do the weekly update on Mondays.  Normally, there's about 170 decisions handed down every week by the Ohio courts.  Last week wasn't normal; only 29 came down.  There's a couple that are interesting, but I'll save them for next week.  Instead, I'll discuss a few things that I've come across in cases that I've handled recently.

Actually, this post should be entitled "Russ' Bogus Journey," because we'll start with the slip and fall case that I tried and got punked on a couple of weeks back.  The case involved a slip and fall on a construction site, and the defense argued the open and obvious doctrine.  (An argument which was greatly aided by pictures of the site, in which the ground looked like it had recently undergone an artillery barrage.)  The defense also argued assumption of risk.

Here's the skinny on that.  There used to be three types of assumption of risk under Ohio law.  The first was express, where the plaintiff had entered into a contract expressly acknowledging the risk.  Another is primary, where the risk is so well-accepted that the plaintiff can be understood to have accepted it; the foul ball at the baseball game is typical of this.  Then there's implied assumption of risk, which Ohio Jury Instructions define as

The plaintiff impliedly assumed the risk of injury if he/she had knowledge of a condition that was obviously dangerous to him/her, and voluntarily exposed himself/herself to that risk of injury.

Except it doesn't exist anymore; OJI claims the definition is drawn from the 1983 Ohio Supreme Court case of Ceccardi v. Anderson, but if you read the case, you find that implied assumption of risk got folded into the concept of comparative negligence.  The defense attorney in my case wanted an instruction on both implied assumption and comparative neglience, but I convinced the judge to charge only on the latter, and I had a full 45 minutes to revel in the brilliance of my legal acumen and persuasive skills before the jury came back with a defense verdict.

And last week, I had a motion to suppress which will probably come to the same bad ending, but I came across some stuff that might be helpful.  In my case, the cops stopped my client for going through a red light and asked him for his drivers license.  When he told them he didn't have it on him, they arrested him, and found that he possessed certain items that the law frowns upon.

It turns out that the police can't arrest a person for not having a drivers license on him.  The statute, 4507.35, says

The operator of a motor vehicle shall display the operator's driver's license, or furnish satisfactory proof that the operator has a driver's license, upon demand of any peace officer...

In other words, it's not a crime not to have your driver's license on you; it's only a crime if you can't furnish satisfactory proof that you have one.  There are a number of cases, including this one last year from the 8th District, which have nullified arrests where the defendant provided information, such as name and social security number, from which the police could have determined whether he had a valid license.  (Virtually all police cruisers, at least in this area, now have LEADS units in them, and if not, they can always do it the old-fashioned way:  call the info in to the dispatcher.)  And, of course, once the arrest goes out the window, everything found as a result of the arrest goes with it.

Continue reading "Russ' Excellent Adventure" »

Helpful practice tips

As you know, Friday's the day I troll the web for news of the interesting and absurd, but the holidays seem to have thrown most people off; there's not a lot of fascinating stuff out there this week.  I did pull this blurb off of the Legal Theory Blog, about an article entitled Nomos, Conflict, and the Tragedy of Adjudication: The Jurisprudence of Robert Cover, the abstract of which reads,

Robert Cover is known for having argued that in every plural society there exist, along with the State, multiple normative entities that create and maintain their own sense of normativity, that is, their own holistic modes of assessing good and bad, valid and invalid, right and wrong. Beyond that, few systematic attempts have been made to pursue this view as a comprehensive theory of law. 

This is one of the (many) times I wish I was a bright guy, because then if I read that article I could probably get past the second paragraph without having my mind wander to questions like why anyone would make something called a "Thickburger," and why anyone would eat it. 

On a slightly more serious tone, the US Supreme Court is considering a grant of certiorari in a case the California Supreme Court handed down in June, in which it upheld the denial of a passenger's motion to suppress evidence seized at a traffic stop.  Despite finding that the stop was unlawful, it ruled that the evidence could be used because the stop didn't constitute a seizure of the passenger.  You can find a fuller discussion here

And back on the lighter side, those of you who've ever had an AOL account will appreciate this.  Canceling an AOL account is only slightly less complicated than getting a death sentence commuted; you can't simply send them an email telling them you want to cancel, you have to call them and talk to a live person, who will spend a fair amount of time trying to talk you out of it.  (As this tape, which got extensive coverage a few months back, shows.)  This suggestion of how to avoid that comes courtesy of CRM Lowdown's Ten Worst Support Companies for Call Center Service:

For those who are at their wits end trying to cancel their AOL account, here's a tip from Utterly Boring: A guy tried for better part of a week to cancel AOL. He talked to six or seven different people on six different days. Each time he was thwarted. Finally, weary of the runaround, he went into a "chat room" and started threatening to kill people in the room. His AOL account was canceled in three minutes.

As for helpful hints in your practice, a month ago, I mentioned that the Supreme Court is going to make all filings available on its web site for download.  To help implement this, the Court just adopted an amendment to its Rules of Practice:  effective February 7, one copy of all pleadings has to be in a "scannable" version -- unbound, unstapled, single-sided (you can paper-clip it together).

Finally, from the Department of Maybe You Ought to Spend More Time on Witness Prep:  The defendant in State v. Edwards is on trial for felonious assault for hitting someone in the head with a baseball bat.  He has a previous juvenile delinquency adjudication for felonious assault for hitting someone in the head with a baseball bat. 

During appellant's direct examination in the case at bar, his trial counsel asked him whether he had "ever hit anybody in the head with a baseball bat?" Appellant began to explain about the prior juvenile adjudication. Before appellant could fully respond, his trial counsel stopped him and asked whether appellant was talking about something that happened in the past. The State objected, and the trial court sustained the objection, noting that trial counsel "asked him a question. You got an answer." Appellant continued to explain the prior juvenile adjudication.

The defendant's assignment of error alleging ineffective assistance of counsel was overruled, because of the overwhelming evidence of guilt.

Have a good weekend.  I'll be back next week with posts on whether judges can give stiffer sentences on a Foster remand, an interesting search case from the 8th District, and another foray by the 8th into the labryinthine world of sovereign immunity.

Continue reading "Helpful practice tips" »

Custody and Patient Privilege

There've been a number of interesting cases out of the 8th District recently that I'm going to touch on.  Today we'll take on two in the civil area. 

If you're handling a custody dispute, and the other party has, shall we say, several mental "issues,"  you'll want to take a look at Hageman v. Southwest General.  The wife subpoenaed records of the husband's treatment for bipolar disorder, and the husband then sued the shrink and hospital for releasing them. 

The court affirmed the trial judge's grant of summary judgment, holding that

the appellant's interests in confidentiality are far outweighed by the concerns surrounding the care of his daughter. * * *  In order for the domestic relations court to make an effective decision regarding appellant's ability to adequately care for his child, it was necessary for the court to evaluate his medical information and prognosis. Similarly, it was important for opposing counsel, as well as the guardian ad litem, to have access to the medical reports in order to make the most informed decisions regarding custody and visitation.

This was in line with the court's decision in Gill v. Gill, back in 2003, that the medical privilege statute provides that "the filing of any civil action by a patient waives the physician-patient privilege as to any communication that relates causally or historically to the physical or mental injuries put at issue by such civil action," and that by filing for custody a party "subjects him or herself to extensive investigation of all factors relevant to the permanent custody award."

That leaves a question, though:  in both cases, the court could easily conclude that the party had waived the privilege by filing a pleading asking for custody.  What about visitation?  Even in an uncontested divorce, the court will enter an order of visitation for the noncustodial parent.  Can the court consider mental issues even in the absence of some pleading which might be viewed to have waived the privilege?  Gill's citation of the custody statutes gives an ample argument for doing so:

Of major importance, as stated in R.C. 3109.04(F)(1)(e), is the mental and physical health of not only the child but also the parents. R.C. 3109.04 places the mental conditions of all family members squarely in issue.

The court also decided a case which added more substance to the claim that the rules on voluntary dismissal of a civil case are in need of a serious rewrite.  In Hutchison v. Beazer, the plaintiff had filed suit against numerous defendants, one of which was granted summary judgment.  Just prior to trial, the plaintiff voluntarily dismissed the case, then refiled against all the defendants, including the one who'd been summaried out.  The trial court ruled that the earlier grant of summary judgment was res judicata, but the appellate court disagreed, relying on earlier cases holding that unless 54(B) final judgment language in the entry granting SJ, it's merely an interlocutory order that's dissolved when the voluntary dismissal is filed.  I've talked about this before, and before you dismiss a case where SJ has been granted to one of the defendants, you'll want to read this and this.

Continue reading "Custody and Patient Privilege" »

Expanding battered woman syndrome testimony

As I mentioned yesterday, the big decision last week from the Ohio Supreme Court was State v. Haines, where the defendant was convicted of mulitiple counts of kidnapping, abduction, and domestic violence of his girlfriend.  The issue was the propriety of the prosecution's introduction of expert testimony on the battered woman syndrome.  The Court's ruling on that was fairly specific:

When a victim's credibility is challenged upon cross-examination during the state's case-in-chief, the state may introduce expert testimony regarding battered woman syndrome to aid the trier-of-fact in determining the victim's state of mind, e.g., to explain why she returned to the defendant despite his aggressions toward her.

The devil's in the details, though, and the Court's decision is neither as broad nor as clear as it might appear.  As the Court acknowledged, use of such testimony poses twin dangers:

An expert witness who diagnoses a victim as a battered woman essentially concludes that the defendant is a batterer. In a case where the underlying charges involve domestic violence, such a conclusion by an expert witness is prejudicial to the defendant and usurps the jury's role as finder-of-fact. A diagnosis can prejudice a defendant further because the expert is presenting a conclusion regarding the victim's credibility, which again is a conclusion to be made by the jury.

The inherent difficulties in presenting such testimony are indicated by the Court's resolution of how this particular needle can be threaded:

Limitations placed upon the expert's testimony -- "the expert cannot opine that complainant was a battered woman, may not testify that defendant was a batterer or that he is guilty of the crime, and cannot comment on whether complainant was being truthful"-- dispel concerns about unfair prejudice... if the expert expresses no opinion as to whether the victim suffers from battered woman syndrome or does not opine on which of her conflicting statements is more credible, such testimony does not interfere with or impinge upon the jury's role in determining the credibility of witnesses.

Well, that's nice, but if the jury has a cumulative IQ higher than the speed limit, they're not going to have much trouble figuring out that the expert explaining how battered women act isn't talking about his Aunt Midge.

Several thoughts.  First, if you've got a case like this, read the opinion carefully.  It does place limits on the testimony, and you need to enforce those limits to minimize the damage. 

Second, to the extent that a trial is supposed to be a truth-finding process, it's hard to quibble with the result in Haines.  Yes, the expert testimony was certainly prejudicial, but that gets back to the observation that all evidence is supposed to be prejudicial, or otherwise it wouldn't be offered.  It's only unfairly prejudicial evidence which is prohibited, and given that battered woman syndrome is a reality, it doesn't seem unfair to ensure that a jury has an understanding of how it works.  After reading the facts in Haines, one does not come away with the feeling that an injustice was done.

But that's a key point, too:  in Haines, the facts about the abuse were testified to by the victim, and the expert testimony was introduced only to rehabilitate her by explaining why she wouldn't have reported the initial abuse, or why she went back to the defendant.  What if she hadn't testified at all, or even denied that abuse had occurred?  Part of the battered woman syndrome is that victims will often recant claims of abuse.  Could the state introduce expert testimony on that?  Given that Haines only addresses the issue of when "the victim's credibility is challenged upon cross-examination," the answer right now is probably no, but that could change.

Continue reading "Expanding battered woman syndrome testimony" »

Tanned, rested & ready

Well, I had a nice vacation, so let's get back to work.  The big decision from the Ohio Supreme Court last week was State v. Haines, a 6-1 decision holding that where the defense impeaches the credibility of a victim of domestic violence, the prosecutor can use expert testimony on the battered woman syndrome to rehabilitate the witness, particularly on questions like why she stayed with the abuser, or why she didn't report the abuse.  The Court imposes some substantial restrictions on the use of the testimony, but there are some logical inconsistencies with the decision.  I'll do a full post on it later this week.  As for the courts of appeals: 

Civil.  8th District holds that discharged municipal employee need not exhaust civil service administrative remedies before filing discriminatory discharge complaint... 9th District holds that open and obvious doctrine does not apply where employee drops planter on customer's head -- time out for our Moment of Duh -- and rejects employer's claim liability is barred because customer should have anticipated employee's negligence... Money paid by wife's parents for husband's medical school tuition not a liability or asset in divorce case, rules 10th District... Father's sending of one Christmas card and gift card in previous year sufficient "communication" to require his consent for adoption, 12th District holds... 9th District upholds zero award in PI case where defendant admitted liability that caused "some injury," holding that "some injury" does not mean "some compensable injury"...

Criminal.  3rd District rules that no contest plea preserves appealability of motion to suppress illegally seized evidence, but not rulings on motions in limine... 5th District reverses sexual predator finding because trial court did not make a finding on whether defendant was likely to reoffend, but remands it back to trial court for that determination; gosh, I wonder how that'll turn out... 6th District upholds suppression of evidence where detention after traffic stop exceeded permissible bounds... Good case out of the 3rd District on excited utterances in child sex abuse cases:  court holds that statement made when child seemed merely "confused," not upset, doesn't qualify...

And if you want to take a trip in the Wayback Machine, check out the 9th District's decision in this case.  The defendant argued that the search should be suppressed, because the affidavit for the warrant didn't include any information on the reliability of the informant, and the court spent nine paragraphs refuting that contention, without ever once mentioning the good-faith exception to the warrant requirement.  It's somewhat refreshing to see a court discuss whether or not an affidavit did in fact establish probable cause, as if it really mattered. 

Like they say, nostalgia isn't what it used to be.

Continue reading "Tanned, rested & ready" »

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