I usually try to do one post a week on civil stuff, but there really isn’t anything recent on that out there worthy of its own post.  I’ll be on vacation next week, so maybe by the time I get back, the Men (and Women) in Black will decide to be a bit more cooperative.  In the meantime, I ran across an 8th District case from a few weeks back that’s worth a read.

RC 2901.13 imposes a six-year statute of limitations for all felonies except murder and aggravated murder.  Normally, the time stops running when an indictment or arrest warrant is issued, but subsection (E) provides that the time doesn’t stop if “reasonable diligence” isn’t used in serving the indictment or warrant.  Last year, in State v. Jackson, the 8th District upheld a dismissal for that reason, finding that the state’s solitary effort in eight years to serve the indictment – by sending the summons ordinary mail, which came back “address unknown” — was insufficient to keep the statute from running before the state finally located the defendant in a federal prison.

The situation in State v. Hughes presented an even longer time interval:  the defendant was arrested and straight-released in 1992, but didn’t appear in court until twelve years later.  Again, the sole attempt to serve him with summons was some six months after his arrest by mail, certified this time, at an address which came back as “unknown.”

There was a complicating factor:  the defendant, whose name is given as Hugh Myers on the docket, had told the police when he was arrested that it was “Hugh Myron.”  Police records showed he also used the name “Hugh Myrie” and, in a flash of originality, Jeffrey Toland and James Roy Scott.  In fact, somewhat embarrassingly, the state had arrested and prosecuted him for drug trafficking in 1998 under the name “Myrie Hugh,” without ever realizing it was the same guy.

The state argued, not without justification, that they’d done all they could:  they had attempted to serve the summons at the only address they had for the defendant — the one he’d given them — and that his use of aliases further hindered his apprehension.  The court wasn’t buying, though.  It’s difficult to read Hughes as holding anything other than that a single attempt at service isn’t going to cut it, regardless of what the defendant has done.

That’s an interesting result; the court could have easily found that the use of the aliases absolved the state from further responsiblities to serve the indictment.  And this was from a pretty much middle-of-the-road panel of judges.

This may be purely a matter of perception, but I get a sense of the 8th District moving in a direction over the past several years, not so much a being pro-defendant, but of being much less tolerant of prosecutorial excesses or deficiencies.  It’s common knowledge among the court and defense bar, and even many assistant prosecutors will admit, that the country prosecutor’s office has essentially adopted a scorched-earth policy:  it’s indicting cases that shouldn’t be indicted, it’s trying cases that shouldn’t be tried, and it’s taking discretional positions — on expungement, plea bargaining, and the like — that it shouldn’t be taking.  I had an oral argument on Monday in a case involving a sexual predator designation, and the prosecutor who argued the case took me aside afterwards and said that he hoped I’d win, because he’d been shocked by the result in the trial court.  When I asked him why they’d sought that designation in the first place, he fluffed it off with, “Well, that’s just our office’s policy.”  It may be that the judges over on Lakeside have sensed the same thing, and have decided to push back a bit to even the scales.

Like I said, this may all be a matter of perception.  Then again, it may not be just my perception.

There was an interesting case out of the 8th a couple of weeks ago on expungement.  As most lawyers know, the expungement statutes have been substantially whittled down over the last decade or so:  the number of crimes which can be expunged have been greatly reduced, and the requirements for obtaining expungement — the definition of “first offender” status, for example — have been made much more restrictive.  And every lawyer around here knows that the county prosecutor’s office is uncompromisingly diligent in enforcing the limitations of the statute.

Two weeks back, in State v. Boddie, the court reversed a trial court’s grant of an expungement, but far more interesting than what the court did is what it said.  The result was compelled by the fact that the trial court had not conducted a hearing on the application, and the statute specifically requires that.  But the state had also appealed on the grounds that the defendant didn’t qualify as a first offender, because he had ”subsequent misdemeanor convictions for drug abuse and ‘open container prohibited’ in the City of Cleveland.” 

Judge McMonagle, writing the court’s unanimous opinion, found that there was “no evidence in the record to support that,” but then went on to suggest that maybe it shouldn’t matter anyway.  After noting that “expungement is an act of grace created by the state” and that ”the expungement provisions are remedial in nature and must be liberally construed to promote their purposes,” Judge McMonagle suggested that perhaps the prosecutors office should take that into consideration:

We note further that whether to prosecute and what charges to file are decisions that generally rest in the prosecutor’s discretion. A prosecutor should remain free to exercise his or her discretion to determine the extent of the societal interest in prosecution. This discretion is no less important when applied to issues such as expungement.

That’s a gutsy decision.  Nobody ever lost an election by being labeled as hard on crime, and there’s no question that the reduction of the expungement remedy reflects that.  But whether any societal interest is served by requiring someone to drag a felony record around for the rest of his life simply because he happened to subsequently get busted with pot or an open bottle of beer is a legitimate question, and kudos to the court for putting that question in play.

No news out of the Ohio Supreme Court last week, and we already discussed the biggie from the US Supreme Court on punitive damage awards.  On to the courts of appeals:

Criminal.  1st District reverses denial of motion to suppress, finds that slow speed — 43 in 65 zone — not indicative of criminal activity warranting stop… 8th District affirms dismissal of case because prosecution failed to produce discovery… 9th District says that two lawyers from same office representing co-defendants not a conflict of interest… 5th District vacates mandatory fine for drug trafficking where court failed to conduct hearing on defendant’s ability to pay…

Civil.  8th District holds that after law-firm breakup, partners not required to share contingent fees from cases they divvied up… Defendant not entitled to setoff from plaintiff’s settlement with third party where settlement agreement specified third party denied liability, 9th District holds… 10th District says refusal of trial court to permit late answer to requests for admissions reviewable only for abuse of discretion, upholds summary judgment; but see this post and this case from 8th District for contra… Fact that husband’s attorney prepared child support worksheet not “invited error,” holds 5th District, doesn’t preclude husband’s appeal that worksheet was wrong…

The decision in State v. Bacher starts out, “the following facts are provided both to inform the reader and to refresh defendant-appellant Brandon Bacher’s recollection of his arrest,” and gets better.  Bacher was stopped for driving 43 mph on I-71, and the court proceeded to detail his “apparent delusions, misconceptions, and concerns,” which included his belief that the Ohio Revised Code required that vehicles be impounded by the American Automobile Association instead of the Bureau of Motor Vehicles.  The court quoted Ron White’s comedy album Tater Salad for its conclusion that Bacher “had the right to remain silent, but not the ability.”

The big news out of the US Supreme Court this week was the decision in Phillip Morris USA v. Williams, which tossed out an $80 million punitive damage award to a widow of a lung cancer victim.  I’d discussed the case a while back, and I’m not surprised by the result.  The court’s decision, on the other hand, is not a model of clarity:  rather than setting forth some clear explanation of how punitive damages can be awarded, the Court focused on the Oregon high court’s finding that the award was justifiable because of the great harm caused by cigarette smoking.  The Supremes, in a 5-4 decision, said this was a no-no, because it essentially considered the damage to non-parties.  On the other hand, the majority held that a jury could consider the “reprehensibility” of the defendant’s conduct, in other words, the harm that its actions caused society.  Justice Stevens found, somewhat understandably, that “this nuance eludes me.”  Stevens was joined in dissent by Ginsberg, Scalia, and Thomas, an alignment that is probably one of the twelve signs of the Apocalypse.

Speaking of which, future generations will undoubtedly determine that this week provided another data point in our glide path toward Romanesque decadence:  while the Vice President’s former chief of staff was on trial in a case involving the reasons we went to war in Iraq, the legal matter which consumed everyone’s attention was the hearing to determine where to bury Anna Nicole Smith, whose sole achievement in a life of excess was to take the motto “you can marry more in an afternoon than you can earn in a lifetime” to vulturous new heights.

And as if to prove the truth of a long-dead playwright’s observation that “it is difficult not to write satire,” it turns out that Larry Seidlin, the judge in the Smith hearing, has provided a demo tape to a network to audition for his own series, a la Judge Judy et al.  As Smith could have told him, the road to stardom has bumps, and his cause wasn’t helped by his somewhat macabre announcement before the hearing that Smith’s body “belongs to me now” and “that baby is in a cold, cold storage room.”

But when it comes to macabre, there’s no topping Andrew Thomas, the prosecuting attorney for Maricopa County, Arizona.  He came into office promising to emphasize capital punishment, and he’s been as good as his word:  Maricopa County now has 130 pending death penalty cases.  Doug Furman at the always-excellent Law and Sentencing Policy blog puts this into perspective:

• Since Furman, Arizona has only executed 22 persons over the last three decades.
• Since Furman, no state other than Texas has executed more than 100 persons
• Last year, only roughly 115 death sentences were handed out nationwide

Another measure is that Los Angeles County, with twice the population, has only a quarter that many pending death penalty cases.  As this newspaper article points out, Thomas’ focus has put serious strains on the system:  the county is running out of lawyers to handle capital cases, and the Arizona Supreme Court, which handles the direct appeal of all such cases, is contemplating hiring additional staff and possibly even creating panels of judges to handle the load when it comes.

Well, if they need more judges, I can think of someone who’s looking for work, as long as they stick a camera in his face.

I’ve mentioned in the past that a lot of cases are coming through the courts now by defendants who committed their crimes before the Foster decision, claiming that the application of Foster to their cases violated the Constitution’s ex post facto clause.  The way this argument goes is that a person with no prior record who committed a robbery in December of 2005 was entitled to receive a minimum prison sentence unless the judge found certain factors.  And then Foster comes down, and suddenly the judge can give him any time, even maximum consecutive sentences, without making any findings at all.  If a statute had required that all first offenders serve minimum sentences, then had been replaced with one allowing a judge to impose a sentence of any length, someone who committed a crime before the new law went into effect would be entitled to the sentencing provisions of the old law.

While the ex post facto clause normally applies only to statutes, it can be applied to cases as well; back in the 60′s, the US Supreme Court held that the South Carolina Supreme Court’s reinterpretation of the trespassing laws so as to apply them to civil rights activists engaging in a sit-in was an ex post facto rule violation.

The courts examining the Foster argument have usually seized on one aspect of the Supreme Court’s decision, that the defendants there could not have anticipated that the South Carolina court would reinterpret the law in this fashion.  The heart of the ex post facto prohibition is that it’s unfair to retroactively penalize people for conduct which was perfectly legal at the time they did it.  That unfairness can occur just as easily from a judicial decision as a new statute.  (Actually, the proper argument is that it’s a violation of due process, rather than the ex post facto clause.)

So the argument the courts have often made here is that defendants had fair warning well before Foster that Ohio’s sentencing scheme had problems.  In this decision, for example, the 1st District argued that the US Supreme Court’s Apprendi decision in 2000 gave fair warning of the defects in Ohio’s law.

Frankly, the notion that the average law professor, let alone the average defendant, thought that Apprendi affected Ohio’s sentencing statutes is a real stretch.  In fact, Foster itself refutes that notion.  In Foster, the state argued that the defendants had waived any objection to their sentence by not raising it at the time of sentencing.  The court rejected the claim, noting that

“Foster could not have relinquished his sentencing objections as a known right when no one could have predicted that Blakely would extend the Apprendi doctrine to redefine ‘statutory maximum.’”

As this case shows, there are any number of good reasons to reject the ex post facto argument on Foster.  That defendants should have foreseen what virtually no one else did is not one of them.

Just a quick note today, on the 8th District’s decision last week in Bencivenni v. Dietz, where the plaintiffs had filed suit against a home inspection company they’d hired prior to purchasing a house.  The plaintiffs alleged that the inspection company had done a shoddy job, and the inspection company responded by asking the trial court to enforce the arbitration clause which was contained in the contract the plaintiffs had signed.  The plaintiffs argued that the arbitration clause was unconscionable, but the trial court disagreed, and granted the motion to stay.  The court of appeals reversed, finding that although the arbitration statute, RC 2711.02, “does not require a hearing… where a party disputes the making of the agreement, or alleges that the arbitration clause is unconscionable, a hearing should be held.”

This is the same result the court reached in a case last year; in fact, the latter case actually was a little stronger, essentially holding that a hearing was required where “enforceability and validity of the agreement were in issue.” 

It’s arguable that the 8th District has become one of the most arbitration-unfriendly districts in Ohio, at least in the context of such clauses in consumer contracts.  The decisions in these two cases go substantially beyond the Supreme Court’s 2003 decision in Maestle v. Best Buy, which rejected the notion that a hearing was required under RC 2711.02.  In fact, I commented last summer that

Unless you’re Warren Buffett or take a lawyer along with you to sign the contract, procedural unconscionability is going to be more or less inferred from the disparity in bargaining power between corporation and consumer, and the adhesionary nature of the contract.

The plaintiff in the case last week didn’t take a lawyer with him:  he was a lawyer.  That certainly would have allowed the appellate court an out.  That it didn’t take it is a good sign for those who are troubled by the increasing use of arbitration provisions in consumer contracts.

As I mentioned last week, the various Supreme Court decisions on the statutory right of speedy trial in recent years have essentially reduced the entire concept to an abstraction.  Four years ago in State v. Brown, the court held that filing a request for discovery or other motion tolled the time until the state answered; last year in State v. Sanchez the court ruled that a defendant’s motion in limine tolled the time; last week’s ruling in State v. Palmer held that the time was tolled if the defendant failed to respond to the state’s discovery in a reasonable time; and yesterday in State v. 7New86 the court determined that time was tolled if the defendant’s name began with an alphanumeric character, a ruling that will probably be expanded in the pending case of State v. #fre*&.

Okay, I made those last two up, but you get the idea.  So what’s a poor boy to do?

Well, several things.  First, for most cases, filing a request for a bill of particulars (which also tolls the time) is a waste, and you can probably get all the discovery you need at the pretrial.  Wait until the day of trial to file a motion in limine.  Make sure you respond to the state’s request for discovery within three to four weeks, and indicate that you’ll supplement the responses as necessary. 

Now, it may not be appropriate to do those things.  The most serious risk is in not filing a request for discovery.  If you’ve filed one, and at trial the state calls a witness who’s not on their list, you have an objection to them doing that; if you haven’t filed one, there’s nothing to prevent them from doing that.

On that score, last week’s decision in Palmer might actually be helpful.  As noted, Brown holds that the time is tolled from the time you request discovery until the state responds to it.  There are a number of courts, and the court of appeals in Palmer was one, which have held that the time isn’t tolled if the state unreasonably delays its response.  After the Supreme Court’s decision in Palmer upholding the trial court’s determination that any delay beyond 30 days in responding was unreasonable on the part of the defendant, I think a real good argument can be advanced that the same logic applies to the state:  any delay beyond 30 days doesn’t toll the time.

One more thing.  I gave a seminar on developments in criminal law last Thursday to the Cuyahoga Criminal Lawyers Defense Assocation, and somebody raised the point that the county prosecutors office is now serving defendants with discovery requests, even where the defendant hasn’t requested discovery himself.  The lawyer said that the prosecutors office believes they’re allowed to do this.

Well, I believe I should be the Pope, but that don’t make it so.  Rule 16 clearly conditions the state’s right of discovery to the defendant’s having first requested it.  Here’s the first provision for discovery from the defendant under 16(C)(1):

a) Documents and tangible objects. If on request or motion the defendant obtains discovery under subsection (B)(1)(c), the court shall, upon motion of the prosecuting attorney order the defendant to permit the prosecuting attorney to inspect and copy or photograph books, papers, documents, photographs, tangible objects, or copies or portions thereof, available to or within the possession, custody or control of the defendant and which the defendant intends to introduce in evidence at the trial.

The others read the same way; the prosecuting attorney has no right to discovery unless the defendant has filed for and received it from the state.  In light of the Palmer decision last week, it’s best not to ignore this.  File a response with the court indicating that the state’s request is improper, and you won’t respond to it further, because you didn’t request discovery.

One day a week here, I do a quick summary of interesting cases decided during the past week in the Ohio courts.  I still haven’t figured out a name for it.  I used “Weekly Update” for a while, but that sort of reminded me of Chevy Chase sitting at a desk while Garrett Morris yelled, “IN THE OHIO SUPREME COURT LAST WEEK…” in the background.  (Speaking of which, they’ve recently released a CD collection of Saturday Night Live’s 1st year.  Interesting to watch how the show developed over that season, from a perspective of thirty years later.) 

Anyway, from here on out, I’ve decided to call this “Case Update.”  If you want to check back updates, you can click on the “Potpourri” category, or you can put “case update” in the search box, and it’ll pull up all of these posts, and you can scroll through them to your heart’s content.  Remember, our motto at The Briefcase:  We read the cases so you don’t have to.

We’ve covered the major Supreme Court decisions from last week, so let’s get to the courts of appeals.

Criminal.  1st District holds that Cincinnati ordinance prohibiting use of motor vehicle to facilitate drug sales, with maximum $500 fine, was a “civil” penalty which did not pose double jeopardy bar to drug abuse prosecution… 2nd District finds basis for stop, no basis for frisk in drug case, reverses denial of motion to suppress… 3rd District holds that aggravated arson and arson are not allied offenses, defendant can be sentenced on both… 5th District reaffirms its earlier opinions that double jeopardy and res judicata do not prohibit court from bringing defendant back and advising him of post-release controls where it didn’t do that at original sentencing… Where defendant offered to sell two ounces of crack cocaine, but substance was actually counterfeit, he can be convicted of only 5th degree drug trafficking, says 6th District…

Civil.  2nd District finds that City of Dayton is “uninsured” for purposes of UM/UIM coverage, plaintiff who was injured in collision with city-owned vehicle can collect from his insurer… Plaintiff is supposed to meet friend in parking lot, goes to wrong parking lot, gets stuck in elevator, fractures wrist trying to get out, sues parking lot, 9th District says he’s a trespasser, only duty of lot is to refrain from willfully and wantonly injuring him… 8th District holds that court can’t enforce arbitration clause in contract without holding an evidentiary hearing on enforceability and unconscionability…

Only the Lonely.  The 1st District tossed out a prenuptial agreement involving a Ukrainian “mail-order” bride in Azarova v. Schmitt.  The most significant legal aspect of the case is the holding that the trial court need not defer to the magistrate’s factual findings, but can reassess the credibility of the witnesses on his own, despite the fact that he didn’t observe them testify.  The facts of the case certainly bolster the argument for maintaining the sanctity of the institution of marriage against the onslaught of the homosexual agenda:  the victim — er, wife — met with her husband-to-be and his lawyer for three hours less than a week prior to the wedding to go over the agreement, where “Schmitt’s attorney allowed Azarova to read the agreement with the use of an English-to-Russian dictionary.” 

Ain’t love grand?

Back in November, I mentioned that the Ohio Supreme Court had just heard oral argument in a case out of Cuyahoga County affirming suppression of evidence based on police violation of the “knock and announce” rule.  Since the US Supreme Court had ruled this past summer in Hudson v. Michigan that it would no longer apply the exclusionary rule to violations of that rule, I wasn’t too sanguine about the prospects for the Cuyahoga County case.

On Wednesday, in State v. Oliver, the Ohio Supreme Court reversed as expected, but its opinion is somewhat troubling.  Rather than simply addressing Hudson in its specific context as a decision on the knock and announce rule, the court took note of some of Justice Scalia’s rather sweeping arguments about the “societal cost” of the exclusionary rule in general:

As the court noted in Hudson, the exclusionary rule and the concomitant suppression of evidence generate “‘substantial social costs’” in permitting the guilty to go free and the dangerous to remain at large.  Because of that “‘costly toll,’” the courts must apply the exclusionary rule cautiously and only in cases where its power to deter police misconduct outweighs its costs to the public.

It’s not difficult to read this as calling for either a substantial limitation on the exclusionary rule, or an ad hoc determination in each case as to whether the “substantial societal costs” outweigh “the power to deter police misconduct.

But the court’s claim that “Hudson presents a significant and arguably new interpretation of the exclusionary rule”  is a dubious proposition.  Hudson was a 5-4 decision, and Kennedy wrote a concurrence specifically stating that the decision to eliminate the exclusionary rule applied only to knock and announce cases, so it’s not at all clear why the court gives Hudson such an expansive reading.  It could have simply held that, in light of Hudson, the evidence seized in this search didn’t have to be suppressed, either, or it could have followed Justice Pfeiffer’s suggestion and determined whether the Ohio constitution provided more protection on that point than the US constitution, which the Court did on a 5th Amendment issue last summer in State v. Farris, as I discussed here.

What’s equally puzzling is what the court did with Oliver.  The court rightly concludes that “the people of Ohio have a paramount interest in knowing how their courts will interpret and apply Hudson, we have a duty to see that Hudson is addressed as expeditiously as possible,” but then remands the case all the way back to the trial court to “reconsider its ruling in light of Hudson.”  And that was “without opining on the propriety of the courts’ rulings on the validity of the search at issue here,” which raises the distinct possibility that after going through the courts for another two or three years, the Supreme Court could eventually decide that the trial court was wrong in holding that the police even violated the knock and announce rule in the first place, thus mooting the entire question of Hudson’s application.

I’ve criticized courts before for saying things and deciding issues that weren’t really necessary for its decision.  (As the 8th District did last fall in a case involving expert testimony in child abuse cases, which I discussed here.)  If indeed there is a “significant and arguably new interpretation of the exclusionary rule,” it would seem that the Supreme Court of the state would be the one to consider that and decide its ramifications. 

The final criminal Supreme Court decision handed down on Wednesday, State v. Buzzard, also involved search and seizure law, and I discussed it back in October.  The very short version is that the police followed tracks in the snow to defendant’s garage, then peered through a one-quarter-inch crack in the door and spotted the stolen items they were searching for.  They got a warrant, but the 3rd District tossed the search, holding that the defendant had a reasonable expectation of privacy in his garage.  Although the defendant had claimed that the police manipulated the door to see inside, the trial court found that they didn’t, and that was enough for the Supreme Court.  Their decision was amply supported by other precedent concerning similar type of searches — the police shining flashlights through windows, or peering through cracks — so the result, while unfortunate, is hardly surprising.

One interesting note, though, relevant to the issue of whether the Ohio constitution might afford more protection than the US constitution, as suggested by Pfeiffer in his dissent in Oliver.  In a footnote, the court states

The parties and courts have analyzed this case under the express rubric of Fourth Amendment jurisprudence. Because the texts of Section 14, Article I of the Ohio Constitution and the Fourth Amendment to the United States Constitution are virtually identical, we interpret the two provisions as affording the same protection.

Does that mean the protections are the same for all cases, or only this one?  Arguably only the latter; the court ruled back in 2003 in State v. Brown that “Section 14, Article I of the Ohio Constitution provides greater protection than the Fourth Amendment to the United States Constitution against warrantless arrests for minor misdemeanors.”

The Ohio Supreme Court apparently decided that since I’m snowed in, it should issue some opinions I can write about.  Thanks, guys.  Three criminal ones, no less, and every one of them going for the state.

First one up is State v. Palmer, yet another in a line of decisions eviscerating the speedy trial statute.  In Palmer, the trial court had held that the defendant’s failure to file a response to the state’s discovery motion for sixty days tolled the running of the statute for half that time, thus bringing the defendant’s trial within the required period.  The 11th District had reversed, holding that none of that time could be counted against the defendant, because the state had never filed a motion to compel.

The Supreme Court reversed that and reinstated the trial court’s decision, noting that it had ruled twenty years ago in Lakewood v. Papadelis that filing a motion to compel wasn’t necessary for a trial court to impose sanctions for failure to provide discovery.  That is correct, but completely irrelevant.

The Court has made numerous decisions over the past few years holding that various actions of the defendant extend the time in which he can be tried.  Less than five years ago, in State v. Brown, it held that a defendant’s filing a request for discovery tolled the time; last year, in State v. Sanchez (which I discussed here), it held the same for a defendant’s motion in limine.  And now this.

What all those decisions have in common is the Court’s complete failure to analyze how any of those activities affect the statute’s only actual concern:  when the defendant is tried.  The obvious purpose of the statute is to ensure that the defendant gets tried within a certain period of time.  The statute correctly anticipates that a defendant may do certain things which delay the trial, and excludes those from the calculation.

What the Court has done is conclusively assume that if the accused does any of those things, it will delay the trial.  In fact, its holding in Brown that “the statute does not require a showing that a motion caused delay before the running of speedy-trial time may be suspended” is directly contrary to the statute, which plainly states that the time is extended only for “the period of delay necessitated” by the defendant’s motion.

It’s one thing to hold that, say, a motion to suppress will delay a trial, although even that’s not the case here in Cuyahoga County, where such motions are heard on the day of trial.  (And in at least one courtroom, the judge will routinely order a jury up before he’s even heard the motion.)  But the filing of discovery is usually one of the first things a defense counsel will do, well before a trial date is even set.  There’s no logical or empirical basis whatsoever for the belief that the filing of a request for discovery causes any delay in the actual trial.  The only time that happens is when the state is tardy in responding, but that’s the state’s fault for its tardiness, not the defendant’s for requesting the information in the first place.

The decision in Palmer suffers from the same defect in analysis.  This time, the court relies upon 2945.72(D), which extends the time for “any period of delay occasioned by the neglect or improper act of the accused.”  There’s nothing in the facts of the case to indicate that any delay was “occasioned” by the defendant’s tardiness in responding to discovery.  If the defendant had provided a lengthy witness list the day before trial, the state might have been within its rights to request a continuance to investigate the matter more fully, and that delay would have been rightfully charged to the defendant.  But that didn’t happen here:  the defendant’s response indicated it had no documents and no witnesses.  It probably should have been provided sooner, but there’s no indication that it caused any delay whatsoever in the trial, and that’s what the speedy trial statute is about.

This case also opens up another can of worms, because it places on the trial court the burden of determining whether defendant’s response was “timely.”  Obviously, the task of preparing a response to discovery in a crack pipe case is far different from that in a murder case.  Note that the trial court in Palmer split the baby, holding that half the 60-day delay was “unreasonable”; there’s little to suggest that his decision was supported by anything other than a desire for Solomonic simplicity.

The good thing about Palmer is that its consequences are easy to avoid.  Note that, unlike the situation in Brown, the time isn’t tolled from the point where the state files its request for discovery, but only from the point where the defendant’s failure to respond can be called “unreasonable.”  If defense counsel files a response within, say, three to four weeks later, it’s hard to see any court determining that’s unreasonable.  The response can say that the defense doesn’t anticipate calling any witnesses or providing any reports, reserving the right to supplement the responses; in probably 80% of the cases, that will be accurate, and if a witness or some evidence you’re required to disclose does turn up, you can simply supplement your response at that point.

Palmer’s not a good decision from the defense standpoint, but another one the Court handed down yesterday is worse.  We’ll get to that one tomorrow, and the other one next week.