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.

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.

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.

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.

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.

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.

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.

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.

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.

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.