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.