February 2007 Archives
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.
A few brief notes on civil cases today.
The 1st District took a recent look at cases that seem to pop up with some frequency anymore: the "valued employee" bails for a job with a competitor, and the former files a lawsuit, based either on a restrictive covenant or a general claim under the Ohio trade secrets act. In Aero Fulfillment v. Tartar, the employee had been a vice president of sales, and left for a similar position with a company in Massachusetts. In upholding the trial court's denial of injunctive relief, Judge Painter gives a comprehensive review of the law on that subject, noting that while one seeking an injunction doesn't have to prove actual harm, they do have to at least show the prospect of irreparable harm, which the plaintiff in this case simply couldn't do; their claim, for example, that the former employee knew their client's identity and was going to them was pretty much refuted by the fact that the company posted the names of their clients on their web site.
And Chapter 27 from the Volume "He Who Hesitates is Lost": the company waited ten months after the employee left to file a lawsuit, and another three months after that to file for an injunction. As the court's opinion succinctly puts it, "where injunctive relief is requested, actions speak louder than words, and motions speak loudest of all." It's tough to argue that you're looking irreparable harm in the face if you wait over a year to do anything about it.
In Lewis v. Ritondaro, the 11th District buttresses its reputation as the most plaintiff-friendly court in the state on the open and obvious doctrine. The plaintiff fell going down the steps of a funeral home, and the court reversed a grant of summary judgment, holding that the difference in height of the steps, combined with the "overlay of indoor/outdoor carpeting that changed the contour, appearance, and navigability of the steps" made whether it was an open and obvious danger a question for the jury. All this in the face of substantial case law which holds that if you fall going down steps that you've gone up just a short time before, it's your tough luck.
Last, I've done some posts, like this one, suggesting that the abuses of the voluntary dismissal rule will eventually lead Ohio to adopt something more akin to the Federal rule, allowing the judge to condition dismissal upon the payment of a defendant's attorney fees or costs. That day is not today, however. In Hanson v. Riccardi, the plaintiff had dismissed her case on the morning of trial with the jury waiting in the hallway, and the court had imposed the condition that the plaintiff pay the costs of the case before refiling. The 6th District reversed, holding that the trial court had lost jurisdiction to do anything as soon as the voluntary dismissal was filed, since that immediately terminated the case. Note, though, that the trial court's action was simply premature: Rule 41(D) gives the court the authority to order payment of costs of the previous action when the new action is filed.
The Supreme Court had one decision of interest last week, State v. Pelfrey, in which it affirmed the reversal of a felony conviction for tampering with records because the indictment didn't specify the aggravating circumstance necessary to elevate it from a misdemeanor. This isn't anything earthshaking -- a jury verdict for nothing more than theft is a misdemeanor conviction, even if the indictment charges that it was for more than $500, which would make it a felony -- except that in this case the jury verdict read, "as charged in the indictment," and the indictment specified the aggravating factor. Plus, the Court rebuffed the state's claim that the defendant waived any error in the form by not objecting to it at trial.
On to the courts of appeal.
Civil. In divorce case, 2nd District finds plaintiff's grounds for extreme cruelty "less than compelling," but affirms divorce on grounds of living separate and apart for more than one year, even though plaintiff never amended complaint to allege that... 5th District says judges must personally sign journal entries; rubber-stamped signature insufficient... 8th District holds that Ohio, not Michigan, statute of limitations applies where Ohio plaintiff was injured in Michigan on trip there through Ohio tour operator... Also holds that contesting motion for summary judgment based upon unanswered requests for admissions constitutes a motion to amend the answers, which trial court has discretion to grant... 5th District upholds determination that mother who worked part-time so as not to interfere with childrens' school activities was voluntarily underemployed...
Criminal. 8th District holds that pretrial electronic monitoring house arrest does not constitute "confinement," defendant not entitled to jail-time credit for that... 5th District holds that prior adjudication of delinquency for domestic violence elevates subsequent charge for same offense in juvenile court from misdemeanor to felony... Trial court loses jurisdiction to modify conditions of probation once appeal is filed, rules 9th District... 6th District holds that defendant has duty to retreat from common area of apartment building in determining self-defense issue...
That answers that question: In a situation sure to arise with some frequency here in Cuyahoga County, the 2nd District holds that criminal trespass is not a lesser included offense of hunting without permission. And the 8th District affirms a conviction against a defendant's claim that
his attorney's opening statement amounted to ineffective assistance of counsel because it failed to counter the force of the state's opening... During opening statement, the state gave the jury a detailed statement of what it expected the evidence would show. For his opening statement, Harris' attorney asked the jurors to "sit with an open mind" and apply common sense to the evidence. Counsel did not offer a defense theory of the case.
Frankly, I think most defendants would wind up with a better claim of ineffective assistance if their attorney did offer a defense theory of the case in opening statement.
I'm going to put off the weekly update until tomorrow, because there are a couple of recent decisions I want to discuss.
Of the 63 criminal cases decided by the Ohio courts of appeals last week, exactly one-third had some sort of sentencing issue. One case of significance was State v. Angulo, where the defendant had been given intervention in lieu of conviction for a drug possession charge, and subsequently picked up a 1st degree felony drug trafficking case. The trial court revoked her probationary status on the first case, then maxed her out on that one and the drug trafficking case as well, and ran them consecutively.
The defendant may well have deserved that; I have no idea what her background was, or what other factors might have played into this. Then again, neither did the court of appeals, because it simply held -- on an Anders brief, no less -- that the only issue on appeal was whether the sentence was within the range provided by the legislature. As I've pointed out before, here and here, that isn't true; even before SB 2, a sentence could be reviewed for abuse of discretion, and Foster didn't change that, nor eliminate the requirement that the court consider the purpose of sentencing under 2929.11 and the factors in 2929.12, 2929.13, and 2929.14.
Of more interest is the 8th District's decision last week in State v. Heath, where the trial court had given community control sanctions to a defendant convicted of hiring a hit-man to kill her husband. (As in almost all such cases anymore, the "hit-man" was actually secretly working for the police.) The state argued that the evidence before the court on sentencing did not overcome the statutory presumption in favor of imprisonment for a 1st or 2nd degree felony.
The court begins by acknowledging one of the anomalous results of Foster: while a trial court no longer has to make findings to give a defendant more time (more than minimum, maximum, or consecutive sentences), it does have to make findings to give a defendant less time, that is, to overcome the presumption for prison time. Under 2929.13(D), a trial court has to determine that sanctions would adequately punish the offender and protect the public, and would not demean the seriousness of the offense. The question of adequacy of punishment is to be determined by application of the recidivism factors uner 2929.12(B) and (C), and whether sanctions would demean the offense is to be determined by application of the seriousness factors under 2929.12(D) and (E).
I'm not going to go into the court's meticulous recitation of how it applied the various factors; you can read it for yourself, and Judge Gallagher even gives consideration to some of the more esoterically philosophical questions about crime and punishment. I'm not terribly troubled by the result, either; in light of the evidence recounted by the court, it's not difficult to come to the conclusion that giving probation to someone who obviously went to some lengths to kill her husband is a stretch, especially since the portrayal of her as an abused spouse might have been less than factual.
The difficulty I have with the decision, though, is how it arrives at its result, especially on the critical issue of the standard of review. There's no question that the judge has to make findings as to why she didn't impose a prison sentence; but how far can the appellate court go in determining the validity of those findings? The opinion begins by correctly noting that
We review the trial court's findings pursuant to R.C. 2953.08(G)(2). Under [that statute], an appellate court may increase, reduce or otherwise modify a sentence, or may vacate the sentence and remand the matter for resentencing if it clearly and convincingly finds either that the record does not support the sentencing court's findings under R.C. 2929.13(D) or that the sentence is otherwise contrary to law.
In other words, the burden is on the state to show that the sentence is wrong, by clear and convincing evidence. Further on in the opinion, though, we find this:
The trial court's reasons and findings with respect to protecting the public and the recidivism factors are supported by clear and convincing evidence in the record.
Suddenly it's the defendant's burden to show that the factors are supported by clear and convincing evidence. That's not so much of a problem, because at least the court decides that that burden was met on the recidivism issue. But finally the court concludes that the sentence must be vacated because
a community control sentence would demean the seriousness of the offense in this case, and the record lacks clear and convincing evidence to overcome the presumption for prison.
Now, all this might seem like nitpicking, but there's a world of difference between saying that the appellate court can't reverse unless it finds by clear and convincing evidence that the sentencing court was wrong, and saying that it can reverse if it finds that the sentencing court can't show by clear and convincing evidence that it was right. And given what I said up top -- that findings now are relevant only to give the defendant less time -- shifting the burden from the state to the defendant on this has major ramifications.
Short note today. I'm supposed to start a trial, which is probably going to go badly, so after I get this done I'll don my Charge of the Light Brigade suit and head over to court.
Several months ago I mentioned a story out of Albany, NY, where a judge was sanctioned for doffing his robe and glasses, rushing up to a criminal defendant, and demanding, "You want a piece of me?" Turns out that the defendant was so horrified by the experience that he's developed "an acute fear of judges and a mistrust of officers of the court," or at least so he says in the $2 million lawsuit he's filed against the judge. I've got a fear of some judges, which doesn't quite rise to the acute level, but I gotta figure that's worth at least a couple grand.
And hopefully I won't have to use the money to pay off the camera ticket I got for driving 37 in a 35 zone over on Clifton Blvd. last August, if the Supreme Court decides the cameras violate the home-rule provisions of the Ohio Constitution. Sue Altmeyer over at the Cleveland Law Library blog has links to the appropriate stories and documents here.
And speaking of judges, even if your name isn't Corrigan or McMonagle, you may have a better shot at striking acute fear into defendants. Ohio Governor Ted Strickland has decided to adopt a new policy with regard to judicial appointments, relying on candidates selected by a judicial panel. There'll be a seat coming up in Common Pleas Court in the next couple of weeks, as Judge Mary Jane Boyle moves over to the Court of Appeals. If you want to toss your hat into the ring, here's the procedure for submitting your application.
Finally, if you're squeezed out for the judgeship, you can always console yourself by being commissioned as an Admiral in the Great Navy of the State of Nebraska. No, I'm not making that up; here's the application form, as posted on the Nebraska government's web site. (You'll note that the website is pretty folksy; the biographical information concerning Nebraska Governor David ("call me Dave") Heineman can be accessed by clicking the tab labeled, "About Dave.") If you're awarded the commission, it'll look like this. Reportedly, Federal Reserve Chairman Ben Bernanke has one, although exactly what he has done to "contribute in some way to the state" or "promote the Good Life in Nebraska" isn't specified.
On the negative side, I don't think the commission will do much to inspire acute fear in anyone.
Back in September, I wrote about the case of Robbie Moore, who killed two people by driving drunk in the wrong lane on I-71 in Cleveland, and was given 10-year maximum, consecutive sentences on each count. The 8th District reversed, holding that the sentence was inconsistent with those handed down in similar situations. In fact, the day before Moore's sentence, another defendant who'd killed two people by driving intoxicated and going the wrong way was sentenced to just six years by another Cuyahoga County Common Pleas judge.
Although RC 2929.11(B) mandates that sentences should be "consistent with sentences imposed for similar crimes committed by similar offenders," I mentioned at the time that it's tough to find helpful cases on this question. After the 9th District's decision a couple weeks back in State v. Ruby, it just got tougher.
Ruby was also a drunk driving vehicular homicide case, in which the defendant was given a 7-year prison sentence. A year and a half later, the same judge sentenced another defendant in the same type of case to 5 years. Ruby filed a motion to vacate her plea based on the inconsistent result, the judge granted it, and after a new plea imposed a 4-year sentence.
The court of appeals reversed. It cited a number of reasons for that, such as res judicata: because the validity of the plea could have been raised on appeal, Ruby's failure to appeal forfeited her right to raise the issue at all. Of course, the sentence which raised the inconsistency issue wasn't handed down until well after her appeal rights had run, but the court held that a subsequent case couldn't be used to raise the inconsistency issue, because that would "only serve to discourage defendants and their counsel from diligently researching similar sentences and presenting that information at the time of sentencing."
Why anyone would bother to present it at that time either is a mystery, given the remainder of the court's opinion. The court cited its decision four years earlier in State v. Quine that "two defendants convicted of the same offense with a similar or identical history of recidivism could properly be sentenced to different terms of imprisonment," and reaffirmed its holding that
Defendant cannot establish, either at trial or on appeal, that his sentence is contrary to law because of inconsistency by providing the appropriate court with evidence of other cases that show similarly situated offenders have received different sentences than did he. Thus, the only way for Defendant to demonstrate that his sentence was 'inconsistent,' that is, contrary to law within the meaning of R.C. 2929.11(B), is if he establishes that the trial court failed to properly consider the factors and guidelines contained in R.C. 2929.12, R.C. 2929.13 and R.C. 2929.14.
Those statutes deal, of course, with seriousness and recidivism factors, sentencing factors pertinent to the degree of felony, and the presumptions for imprisonment.
Essentially, what Ruby and Quines do is read out the consistency requirement of 2929.11(B): as long as the judge considers the factors in the other statutes, the sentence will be conclusively deemed consistent. A judge could be presented with two virtually identical case patterns and hand down two completely disparate sentences, and it wouldn't matter, so long as he considered the factors in the other statutes.
To be sure, the opinion says that the judge has to properly consider the factors, but that's somewhat misleading. The case law doesn't require the trial court to make findings with regard to each factor; he only has to state that he's considered them. Short of making a factual error -- stating that the defendant has a prior criminal record when he doesn't -- it's virtually impossible to imagine an appellate panel second-guessing a trial court's decision on how he applied the factors.
The Ruby court's essential point is that consistency does not mean uniformity, and that's valid. The sentencing guidelines were really little more than a codification of factors that judges have been taking into consideration in sentencing for centuries. The goal of SB 2 was to guide judicial discretion, not to eliminate it altogether by compelling identical sentences for the same crime. And given the complete lack of sentencing data, it's hard to get too worked up about Ruby, simply because it's so difficult to come up with evidence demonstrating that a particular sentence was grossly disproportionate.
To be sure, eliminating grossly disproportionate sentences was one of the goals of SB 2, and Ruby is a setback in that respect. Still, you have to wonder whether that goal was ever more than an illusory one, save for the rare cases like Moore. I remember attending a seminar on sentencing law about six months before Foster came down. During the last hour, we were given a hypothetical involving a man who'd been charged with four counts of gross sexual imposition involving his 9-year-old niece. The instructors wanted us to figure out what additional information we'd want to know in order to present the court with appropriate guidance on the sentencing factors. We quickly concluded that the most important piece of information was the judge: depending on what name the computer in the arraignment room spit out, your client would wind up with anywhere from probation to 20 years in prison.
Speaking of seminars, I'll be giving one next Thursday, February 15, at the monthly meeting of the Cuyahoga Criminal Defense Lawyers Association. The meeting's at 6:00 PM, and the seminar's at 6:30, and will last for an hour. It's on developments in criminal law in Ohio over the past year, and you'll get CLE credit for it if you're a member of the CCDLA. It's at Damian's on the Square, which used to the Lincoln Inn. If you need more information, email me.
Maybe some lawyers just don't have enough to do. That thought occurred to me while reading the 8th District's decision a few weeks ago in Morris-Walden v. Moore.
The facts are simple: the plaintiffs filed a complaint alleging breach of fiduciary duty, tortious interference with contract, and other neat stuff like that. The case was settled right before trial, on December 5, 2005, with defendant agreeing to pay plaintiff $10,000 in ten days. When defendants hadn't paid by January 6, 2006, the plaintiffs filed a motion to reinstate under Rule 60(B) and a motion for sanctions. Defendants paid the money the next day.
Mission accomplished, right? Wrong. That's when the legal maneuvering went into high gear:
On January 11, 2006, appellees filed their response to appellants' motion to reinstate and for sanctions. Seven days later, appellants sought leave to file a reply to appellees' response. A number of motions soon followed, including: plaintiffs' reply to defendants' motion for leave to file reply instanter, defendants' rejoinder to plaintiffs' reply, plaintiffs' motion to strike defendants' rejoinder, defendants' motion for nunc pro tunc leave to file rejoinder and brief in opposition to plaintiffs' motion to strike.
And a partridge in a pear tree. The trial court, apparently deciding, quite correctly, that it had a virtually infinite variety of better ways of occupying its time, denied all the motions. At which point the plaintiffs, having devoted a substantial amount of attorney time to recouping the month's interest on the $10,000, took it to the court of appeals.
The appellate court made short shrift of the plaintiff's argument that the defendant's failure to pay within the ten days constituted a "fraud on the court" under Rule 60(B)(3), and held that the appropriate remedy would have been to file an action for breach of contract:
Allegations that a party did not honor a settlement agreement may be the subject of an independent action for breach of the settlement contract but not for relief from the settlement itself.
The court probably went a little too far here. As this case from the 1st District recognized last year, there's a good body of case law that a party has two remedies for a breached settlement:
A party may seek to enforce a settlement agreement through the filing of an independent action sounding in breach of contract, or it may be sought in the same action through a supplemental pleading filed pursuant to Civ.R. 15(E), setting out the alleged agreement and breach.
Indeed, as Judge Karpinski points out in her dissent in this 2002 case, there's case law in the 8th District holding that the commonplace "settled and dismissed" entry is actually a "conditional dismissal," where the case isn't really dismissed until the settlement is completed, and until that time, the trial court has inherent power to enforce the settlement.
So if you settle a case and the other side stiffs you, you've got a remedy. But if they send you a check the next day, take the money and be done with it. It beats spending a lot more time on the case just so you can ultimately stand before a panel of appellate judges and try to explain to them why you're wasting their time.
A few weeks back, I'd mentioned that there were three good decisions out of the 2nd District recently that I wanted to highlight. The third one is State v. Kerby, which provides an excellent discussion of the law pertaining to voluntariness of a confession.
Kerby was a 17-year-old who was convicted of aggravated murder in the robbery of a video store and the shotgun slaying of the clerk. After assembling some other evidence which fingered Kerby as one of the participants, five officers in three squad cars went to his house at 2:30 in the morning. They took him to the station where he was advised of his Miranda rights and, after about an hour of interrogation, confessed.
On appeal, Kerby first argued that he'd been unlawfully arrested, which would make the confession a fruit of the poisonous tree. The court spent a fair amount of time concluding that he'd been arrested, although I'm not sure why -- even the officers conceded he was in custody. They decided, though, that the police did have probable cause for the arrest.
They then moved to the issue of the voluntariness of the confession. Although the giving (and waiving) of Miranda rights is a factor to be taken into consideration on that score, it doesn't insulate the confession from a determination that it's not voluntary. And that's what the court held here, based upon the fact that the police told Kerby that he'd be facing the death penalty if convicted. Since Kerby was under 18, that wasn't true. The 2nd District has thrown out a number of confessions where the police have lied about the consequences a defendant might face -- such as this one, where the police told a suspect in a child rape case that he could get counseling and probation if he confessed, or where a suspect was promised probation in a murder case.
Oddly enough, there aren't a lot of cases outside the 2nd District on this, and those that are generally take a more permissive attitude toward police practices which mislead the suspect. In this one, for example, the 6th District found no problem with the police officers' falsely telling the suspect that his DNA had been found at the scene of the crime. If you've got a case on this issue, the 2nd District cases are where you want to go.
A couple of interesting things about the decision. First, Kerby's brother was also a participant in the robbery, and had been convicted a year earlier. The court also reversed his conviction on a confession issue, this time because the police had reinstituted the interrogation after he'd asserted his right to a lawyer. But the day after the confession, the brother granted an interview to two newspaper reporters, in which he made a full confession, and the court said there was no bar to using the interview at the next trial.
Secondly, the original appellate counsel in this case had filed an Anders brief, stating that he couldn't find any non-frivolous assignments of error, and asking leave to withdraw. The court reviewed the record on its own, as it's obligated to do, decided the issue of voluntariness of the confession needed to be explored, and appointed new appellate counsel to argue it. Which, of course, he did, successfully. The court deserves some credit for not just rubber-stamping the first attorney's claim that the appeal had no merit.
And if you're going to miss an issue that gets a murder conviction reversed, you probably shouldn't be doing appeals work.
Apparently, there have been a lot of changes of heart among criminal defendants in the 2nd District; there were about five decisions last week from there on withdrawals of guilty pleas. One of them even worked, a DWI in muni court, where the judge apparently took the defendant in chambers and took a plea without a record. The others... well, not so much. This one gives a good discussion of the factors to be used in determining the issue. Now, on to the other courts:
Civil. Whether clear puddle of water on floor was "open and obvious" was question for jury, 8th District rules, reversing grant of summary judgment; much better result than this one last year from 1st on same facts... 10th District reverses grant of summary judgment on cause of action not put in issue by defendant's motion... Mortgage interest, utilities, and insurance paid by sellers after buyers breached contract to purchase home not recoverable items of damages, 12th District holds... 5th District reaffirms public policy exception to at-will employment, prohibiting discharge for employee's statement that she would consult an attorney because of reduction in her bonus...
Criminal. 3rd District holds that failure to provide suspect's name to police not affirmative act required for conviction of obstructing official business... Agreed sentence does not implicate Apprendi/Blakely/Foster cases, 8th District holds, and is not appealable... Good discussion of adoption of statement by silence in this 9th District case, with a reminder that if you're in jail, it's not a good idea to discuss your case on the phone... 10th District rejects claim that applying Foster to crimes committed before its date, so as to raise potential sentences, violates rule that criminal statutes be strictly construed against state (rule of lenity)...
Reason #113 why I don't do work in Juvenile Court anymore. In 1998, Archie Harrison filed a motion in the Cuyahoga County Juvenile Court to modify his child support payments. He retired the following year. In 2005, the court finally got around to ruling on the motion he'd filed seven years earlier, decided that it could only consider his income from 1998, and raised his child support payments by $200 a month.
The 8th District reversed.
One of every 32 adults in America is on probation, parole, or incarcerated. As of last year, we had 2.2 million people in prison or jail, more than any other country in the world. With 5% of the world's population, we have 25% of the world's prisoners. Our rate of incarceration is 737 per 100,000; in most European nations, the figure is between 55 and 120 per 100,000. Japan's rate is 36.
That has not come without cost. State spending on prisons increased by 189% from 1980 to 2000. That was six times the rate of increase in spending on education. In some states it's much more; prison spending in Texas increased 401%, while spending on education increased only 37%. From 1984 to 1994, California built 21 prisons, and only 1 state university; spending on prisons increased by 209% in that time, while spending on state universities increased by 15%.
So it's only natural to wonder: how much of a bang are we getting for that buck? The purpose of locking up people -- or convicting them of crimes and then putting them on probation -- is to reduce crime. Is that happening?
Well, not so much, as a recent report from the Vera Institute for Justice shows. There have been any number of studies in recent years on the effect of incarceration on crime rates; the report sifts through all the data, and concludes that, in all probability, a 10% increase in incarceration results in a 2% to 4% drop in crime. What's more, that might be retrospective, not prospective: while the studies show that increased rate of incarceration was responsible for about 25% of the drop in crime during the last couple of decades, it's quite probable that we've reached the point of diminishing returns, where locking up more people doesn't really do any good.
Or might even do harm. In some cases, the report showed, an increase in incarceration can actually increase the crime rate as well:
Dina Rose and Todd Clear, for example, found that the level of crime in several Florida communities increased after the incarceration rate of individuals from those communities reached a certain level. Rose and Clear argue that high rates of imprisonment break down the social and family bonds that guide individuals away from crime, remove adults who would otherwise nurture children, deprive communities of income, reduce future income potential, and engender a deep resentment toward the legal system. As a result, as communities become less capable of maintaining social order through families or social groups, crime rates go up.
Many have claimed that the drug epidemic has wreaked havoc with inner-city black communities in the past two decades. It may be that our response to that epidemic -- passing increasingly punitive drug laws to the point where one in three young black males is currently in the criminal justice system as an inmate, parolee, or on probation -- has only worsened that problem. And the belief that such sentences targeted only those who trafficked in drugs is belied by the statistics: between 1980 and 2005, the number of inmates incarcerated for drug possession offenses in state prisons and jails increased by 1,000%.
The discerning reader might have noticed that if 25% of the drop in crime resulted from increased incarceration, 75% resulted from other factors, and at this point it might behoove us to concentrate on those other factors. The report does, noting that more police, increased employment, and higher high school graduation rates have all had pronounced effects on crime rates. What's more, it seems that many people have come to the belated realization that most of those we incarcerate have to get out of prison sometime, and preparing them for a smoother transition back into society, through education and training while in prison and providing community re-entry programs, is a cost-effective way of reducing crime.
And it may be that all this will happen. The report notes that "while 75 percent of Americans believed that too little money was spent on halting rising crime rates in 1994, by 2002, this had declined to 56 percent," so perhaps we've gotten beyond the "lock' em up and throw away the key" mentality.
Or perhaps not. Crime rates are rising again. As Prof. Berman of the Law and Sentencing Policy blog noted, the Blakely and Booker decisions made the US Supreme Court "the most liberal, pro-defendant court in the country on sentencing procedure"; the result of that, though, has been to reverse the momentum in Congress toward eliminating mandatory minimum sentences, and to actually increase the likelihood that criminal statutes will be modified to reduce the discretion of judges to hand down lighter sentences. Blakely and Booker also forced the Ohio Supreme Court to reconsider Ohio's sentencing statutes; the sole result of its decision in Foster was to make it easier for trial judges to impose harsher sentences. The Ohio legislature over the past decade has substantially narrowed the number of crimes eligible for expungement, thereby increasing the number of people who will carry a criminal record around with them for the rest of their lives, harming their prospects of obtaining gainful employment. And nobody has yet lost an election by being too hard on crime.
There's the old story of the frog and the scorpion, where the scorpion asks the frog to carry him across the river, and the frog says, "But you'll sting me." The scorpion assures him that won't happen, but halfway across, the scorpion stings the frog. "Why'd you do that?" protests the frog as he starts to sink, "Now we'll both die."
"Because I'm a scorpion. That's what scorpions do."
Maybe locking up people is what we do.
I've felt that I've been a little hard on the 8th District recently on some of its decisions, so today I want to give credit where credit is due: the court's recent opinion in City of Cleveland v. Colon is about as good an explanation of the law pertaining to Crawford v. Washington as any that's been handed down recently.
As criminal defense attorneys know, Crawford was the 2004 US Supreme Court decision where the state had attempted to introduce a wife's statement against her husband. The wife couldn't testify because of the spousal privilege, but the state tried to introduce the statement under the declaration against interest exception to the hearsay rule. The Supreme Court held that wasn't permissible, because "testimonial statements" are barred by the Confrontation Clause: the only way the evidence can come in is if the person who made the statement actually testifies.
Since that time, courts have wrestled with exactly what is a testimonial statement, but they've also run into problems with how Crawford intersects with the hearsay rule. Take this 9th District decision from 2005, for example, a domestic violence case in which the court upheld the admission of testimony by the police officers as to what the victim told them. The court's conclusion that the victim's statements qualified as excited utterances is defensible, but its treatment of Crawford is not: it essentially holds that if the statements at issue qualify under a hearsay exception, Crawford is irrelevant. In fact, the opinion cites to Ohio v. Roberts on numerous occasions that out-of-court statements don't violate the confrontation clause as long as they qualify under a "firmly-rooted" hearsay exception, without apparently realizing that Crawford expressly overruled Roberts on that point.
By comparison, Judge Gallagher's opinion in Colon is spot-on. Colon presented the identical situation: a domestic violence case in which the prosecution sought to admit the victim's statements as an excited utterance. (The victim didn't testify.) The opinion correctly notes that this is no longer sufficient:
In the wake of Crawford, then, it can no longer be said that 'the judicial inquiry is at an end,' so long as an out-of-court statement qualifies as an excited utterance or falls within some other 'firmly rooted' hearsay exception.
The first step is to determine whether the statement is testimonial; if it is, that's the end of the inquiry, because its admission would violate the defendant's right to confrontation. If it isn't, then you proceed to the next step: determining whether the statement does in fact qualify under an exception to the hearsay rule. In this case, that meant deciding whether it qualified as an excited utterance.
Actually, you can perform those steps in either order. Obviously, if something doesn't qualify under a hearsay exception, it's not going to come in regardless of whether it's testimonial or not. If it does qualify, then you can proceed to determine whether it's testimonial. The important thing to remember is that both steps need to be performed anytime out of court statements are sought to be admitted. You can't just glide by Crawford and presume, as the 9th District did, that statements which qualify under a hearsay exception are non-testimonial.
Of course, writing a tight, well-organized, well-thought-out opinion is nice, but it doesn't help if you get the decision wrong. I don't think that happened here, at least under current precedents. The court concluded that the statements were excited utterances, and thus qualified under that hearsay exception, and that they weren't testimonial because they were intended to seek immediate assistance, not provide information to be used in the prosecution of the defendant.
That last one is a little tricky, because it's obvious that a woman who's bleeding and yelling, "My husband is beating me up," could be offering that statement for both purposes. Still, given the court's previous cases, and the US Supreme Court's decision last year in Davis v. Washington, which I discussed here, I don't think there was any other result the court could've come to.
This goes back to what I said at that time: despite the initial hooplah from the defense bar when Crawford came out, it's becoming clearer that the decision isn't as broad as initially thought. Justice Thomas makes an argument in his dissent in Davis that Crawford should be limited to "formal" statements to the police, and I wouldn't be surprised if the Court moves toward that view over the next few years.
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