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March 2007 Archives

CYA at the DOJ

Time for some more politico-legal stuff, it seems.  It's been observed that Republicans campaign on a platform that government doesn't work, and when elected, proceed to prove it.  That was on display again this past week, with the latest botch job from the Gang That Couldn't Keep Their Stories Straight, aka the US Justice Department.  According to this Washington Post story, the government managed to get the longest sentence ever for a tax fraud case -- nine years -- but the judge can't order restitution of $140 million because the DOJ screwed up the plea agreement.  As Doug Berman notes on his Sentencing Law and Policy blog,

So, the lessons of this story are (1) pay your taxes, and (2) the Justice Department under AG Gonzales apparently cannot even write plea agreements without costing the government hundreds of millions of dollars.  (Indeed, a botched plea agreement costing the government $140 million sounds like a very legitimate performance-related reason to take a prosecutor to task.)

While on that latter subject, legal debate has focused on the question of whether Monica Goodling, the DOJ liaison to the White House, can validly claim a 5th Amendment privilege not to testify before Congress.  It turns out that Ms. Goodling was in on the phone call in which Senator Pete Domenici (R-NM) called New Mexico USDA David Igelesias to inquire whether he'd be indicting a certain Democrat before the election.  When told that wasn't going to happen, Domenici expressed disappointment and hung up.  His sagging spirits were reportedly revived several weeks later when he was told that Iglesias had been terminated.

Now, it may be that Goodling's participation in what might be interpreted as an attempt to pressure a USDA to indict someone for partisan political purposes is the basis for her desire to invoke her right against self-incrimination.  (She announced her intent to take the 5th before the store broke about her participation in the call.) Obviously, Goodling has a right to refuse to testify concerning any crime she may have committed.  The argument that her counsel is raising, however, seems to be that she can refuse to testify, not on the grounds that whatever she testifies to will incriminate her for past conduct, but that it could be used in a subsequent perjury prosecution.

It would seem that the obvious way of avoiding a prosecution for perjury would be to tell the truth, but the defense of Goodling's invocation of the 5th centers around the contention that the recently martyred Scooter Libby was convicted not because he lied but because he had a "faulty memory."  (This claim has much more resonance with those who don't know what the elements of perjury are and who didn't follow Libby's trial.)  In addition to posing the spectre that we now live in a country in which every administration is condemned to have a Monica problem, the contretemps raises issues of constitutional law, with Orrin Kerr of the Volokh Conspiracy arguing that this is not a valid assertion of the privilege, and Eric Muller at Is That Legal taking the contrary view

Oh, and while looking up stuff on this I stumbled across a new website, Gonzelez Watch, which is devoted solely to blogging about the AG and his current travails.  I wouldn't put it in your Favorites just yet; I don't think it's going to be around too much longer, given that even the National Review, the house organ for conservative politics, recently announced that it was joining the growing chorus calling for Gonzalez' resignation.  Memo to Alberto:  the Prez was a standup guy for Rumsy, too, up to the very moment he wasn't.

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Guilty Pleas and Post-Release Controls

Here's the situation:  the defendant pleads guilty to possession of over a thousand grams of cocaine, a 1st degree felony with a major drug offender specification mandating the maximum ten year sentence.  At the plea hearing, the judge advises him that he could be subject to "up to" five years of post-release controls.  After the plea and sentence, the defendant appeals, claiming that the trial court erred:  the defendant is supposed to get exactly five years of post-release controls, and that's not what the court said.  Since the court did not accurately inform him of the sentence, he's entitled to have the plea vacated.  Deal or no deal?

No deal, said the 2nd District last week in State v. Harrington

Actually, the decision isn't as much of a no-brainer as you might think.  The 8th District in particular has been very strict in regulating how the court advises defendants of post-release controls at the time of the plea, and probably would have reversed in a similar case.  Last year it had two cases, here and here, in which it threw out a plea where the judge advised the defendant of post-release controls, but didn't tell him how long it was going to be.  The topper was State v. Jacobs, which the court vacated a plea where the defendant was looking at 58 years in prison for drug trafficking, and copped a deal which gave him 8; in that case, though, the trial judge had failed to advise defendant at all of post-release controls at the plea before proceeding immediately to sentencing.

Some courts are a little more forgiving.  Since post-release controls involves a non-constitutional right, only "substantial" compliance with Rule 11 is required.  (Advising of a constitutional right requires strict compliance, on the other hand, and the 8th District has even reversed a plea where the trial judge advised the defendant that he had a right to call witnesses in his defense, but failed to tell him that he had the right to subpoena them.)  Some courts thus take the approach that the defendant must show a prejudicial effect from the court's failure, and that the appropriate test is whether the plea would otherwise have been made.

That's probably a bit too far in the other direction, and gets into some mind-reading that the courts are better off avoiding.  Still, there's some merit to a more common-sense approach.  As the 2nd District pointed out last week,

Harrington knew that by pleading guilty he would be subject to a mandatory ten-year term of imprisonment. The trial court clearly advised him of that inescapable consequence of his plea. Given the magnitude of this sentence, to which Harrington tearfully referred when he said, at the sentencing hearing, "You know, ten years is a long time," we find it unlikely, in the extreme, that a mistaken understanding, on Harrington's part, that there was a possibility that his post-release control period might be less than five years, played any significant part in his decision to accept the plea bargain.

And keep in mind that this is one of those situations where the Arab curse, "May your wishes come true" takes on some reality.  In Jacobs, for example, the appellate court pointedly noted that it was vacating the plea and reversing so that the case could "proceed on the indictment," an indictment in which the defendant faced over half a century in prison, as opposed to the less than a decade he got in the plea.  What's more, the prosecutor in the case is very well-known to the defense bar because she handles a lot of the drug cases there, and based upon my prior dealings with her, I'm figuring that her opening gambit to defense counsel at the first pretrial isn't going to be, "How can we improve upon the deal we offered your client the last time?"

Continue reading "Guilty Pleas and Post-Release Controls" »

Stop-and-Frisk: Policy searches

Yesterday I regaled you with the story of my recent bogus journey in the 8th District, where I got punked on the appeal of a sexual predator designation.  But all is not gloom and doom; a month ago, I had an excellent adventure there, in which the court reversed the denial of a motion to suppress what has become increasingly common in recent years:  the police stopping a vehicle, removing the occupant for some reason or other, then conducting a "protective sweep" of the interior before allowing the occupant back into the car. 

The facts in State v. Henderson were fairly straightforward:  around five in the morning, a police officer saw the defendant run a red light at Harvard and E. 131st.  He followed him, saw him exceed the speed limit by about 15 mph and run a couple of stop signs, and finally put on his lights and siren, at which point the defendant immediately pulled over and stopped.  The officer envisioned any number of scenarios as he approached the car, including that "that [the defendant] was fleeing a murder."

As they say in the Hertz commercials, "not exactly."  The defendant was a 53-year-old man in a hurry to help his wife open their store, and then get to his dialysis appointment.  The officer put Henderson in the back of the squad car while getting this information, then confirmed it with Henderson's wife.  The officer decided to let Henderson go, but before doing so, followed his "standard policy" of searching the interior of the vehicle to make sure that "there is nothing that is going to come back to me."  He found a gun in the car's console, and Henderson was charged with CCW and, by virtue of a 1989 drug conviction, having a weapon under disability.

The appellate court made short shrift of the state's argument.  I've mentioned before that too often police, and even lawyers and some judges, conflate the stop and frisk requirements, believing that anytime a stop is justified, a frisk is as well.  The court correctly noted that the more intrusive frisk "is not permitted. . . merely for convenience, or as part of [the officer's] normal routine or practice," and that

there is nothing in the record to show that the officer had a reasonable, articulable suspicion at any time during the traffic stop that appellant was armed and dangerous and that a search of the vehicle was necessary to protect him from danger.

Actually, this is one of those examples of how making a record in the lower court dictates the result in the appellate court.  I'd handled the hearing in the trial court, too, and was greatly aided by one of the most honest cops I've come across; the result might have been different if he'd "remembered" that he'd seen the defendant make a "furtive movement" as he approached the vehicle.

Still, Henderson is a handy case to have.  There are a number of bad decisions out there on interior searches of vehicles, including a nasty 1997 Hamilton County which flat-out states that the police have a right to conduct an automatic search under those circumstances.  And let's face it:  Lexis and Westlaw aren't exactly bulging with pro-defendant 4th Amendment decisions.  After I'd finished the oral argument in this case, the lawyer in the next case approached me and whispered, "If you lose this, we're all screwed."  A slight exaggeration, but not by a lot.

And he didn't use the word "screwed."

Continue reading "Stop-and-Frisk: Policy searches" »

Sexual predators

One of the purposes of appellate review is to give lower courts clearer guidance on the issues which come before them.  A trio of 8th District decisions last week shows that the appellate courts are still struggling to give any meaningful direction in the area of sexual predator designations.

Two of the cases were fairly routine, and fell within the normal range of opinions on that issue.  The defendant in State v. Buckley was classified as a sexual predator for committing an attempted rape in 1989, and he had four other sexual offense convictions in the thirty years prior to that.  The defendant in State v. Twiggs was designated a predator for an offense which occurred in 1979; he'd been in prison virtually the entire time since then, and again had prior offenses involving women.  The court correctly focused on the question of whether the defendants were likely to reoffend, and concluded that their history, and certain other factors, made that more likely.  Their ages admittedly made that somewhat questionable; Buckley had no history of offenses against children, and at age 64 probably didn't pose much of a threat to anyone older than that.

The outlier of the cases, though, is State v. RosenburgIn the interests of full disclosure, I handled the appeal, but this really isn't a gripe session.  The court's opinion was quite complimentary, stating that "counsel raises several compelling and well-reasoned arguments," and that I "make a compelling case that the existing sexual predator classification process can potentially result in dissimilar treatment of similar offenders."  Needless to say, that made my client feel a whole lot better when the court affirmed his sexual predator classification.

Here's the problem with Rosenburg:  the facts.  The defendant was 20 years old, had been invited to a woman's apartment at 3:30 in the morning, where they both drank and smoked marijuana.  She fell asleep on the couch, and when she woke up, the defendant was on top of her, and held her down while he had sex with her.  He wound up pleading guilty to one count of sexual battery, and was sentenced to three years in prison. 

The trial court found several factors in branding Rosenburg a predator:  he'd had prior offenses, the offense involved "cruelty," and the STATIC-99 predicted a 38% chance of sexually reoffending within fifteen years.  The problem was that none of the prior offenses had anything to do with sex, or even violence (they involved drug possession and receiving stolen property), the offense didn't involve any more cruelty than any offense involving force would, and, as I've mentioned before, the 8th District has been fairly consistently in holding that the STATIC-99 is pretty much a non-factor.  Besides, it's hard to see how a 38% chance of reoffending constitutes "clear and convincing evidence" that the defendant will in fact reoffend.  If I try a fender-bender and the doctor says there's a 38% chance that my client's injuries were caused by the accident, I don't make it past a directed verdict.

So what happened?  Part of the problem is the statute itself, RC 2950.09, which spells out the procedure for designating a defendant as a sexual predator.  Included in that procedure is a list of ten non-exclusive criteria for the court to consider, such as the offender's prior history, the ages of the offender and victim, and so forth.  Anytime you have this sort of thing, instead of looking at the statute holistically to determine what its purpose is and how best to serve that purpose, the court tends to fall into what I term Chinese Buffet Syndrome:  it winds up going down the list and selecting this one and this one, then calls it a day.

Unfortunately, the appellate courts have offered virtually no guidance in how these criteria are to be applied, other than saying that the trial judge is required to consider them; the judge doesn't have to find all of them, or even a majority of them.  The judge doesn't have to give her reasons for finding any of them to be applicable, but need only indicate that she considered them.  In Rosenburg, the appellate court hung its hat on the fact that the defendant failed to acknowledge that he'd committed a crime, and expressed no remorse for it.  Although that's not one of the factors listed, they are non-exclusive, and one could make an argument that someone who committed this offense and didn't see anything wrong with it is more likely to commit another one.  On the other hand, one could argue that spending three years in prison would serve as a sufficient disincentive, and that while this is certainly criminal conduct, there's a legitimate question whether Rosenburg should have to drag around a sexual predator designation for the rest of his life for doing something that several people I know majored in while they were in college.

In fact, one comes away from a reading of Rosenburg with the question:  under what circumstances would an appellate panel reverse a sexual predator designation?  The court states in its opinion that

we do acknowledge the potential danger of "overclassifying" all sexual offenders as predators. The risk that the pool of offenders so labeled will become so large as to dilute the identity of those who pose the greatest risk to the public is indeed real.

Unfortunately, it gives no guidance to the lower courts on how to avoid that overclassification.  It's hard to imagine that the legislature had somebody like Rosenburg in mind when they enacted the sexual predator statute.  A better approach would be to focus on the concerns that motivated the passage of the statute in the first place:  sex offenses against children, and violent sex offenses against anyone.  That's what a "sexual predator" is in common parlance.  Laws have a tendency to take on a life of their own, and that's what's happened to RC 2950.09:  instead of looking at what the law is intended to achieve, both trial and appellate courts engage in a mechanistic process of checking off which factors apply and which don't.  As long as that continues, the Rosenburg panel's concerns about the danger of overclassifying sexual offenders is warranted.

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Case Update

Good news this week from the Ohio Supreme Court for insurance companies, parents, and Girl Scouts:  the Court ruled that off-road vehicles can be excluded from UM/UIM coverage, that parents can wait until their kids reach 18 before suing for loss of services and medical expenses if the child is injured, and that a Girl Scout store in North Canton was exempt from property taxation, even though they marked items up 20% to 30%.  Gosh, and here I thought they sold those cookies at cost... 

On to the courts of appeals:

Criminal.  8th District holds that defendant can be convicted of violating protective order, even if order is subsequently determined invalid... 2nd District holds that court's advising defendant he would have "up to" five years of post-release controls on 1st degree felony plea substantially complied with Rule 11, against defendant's claim that plea was invalid because he would have exactly five years of PRC... 8th District upholds trial court's conduct of hearing in chambers, without defendant present, on motion to suppress identification testimony... 9th District reverses trial court's denial of motion to vacate plea... 12th District holds that defendant's statements to children's service investigator admissible despite Miranda, because defendant wasn't in custody and investigator wasn't police agent...

Civil.  Person injured at hotel while visiting a tenant an invitee, not a licensee, 2nd District rules... 6th District holds that plaintiff collaterally estopped to assert defendant ran red light because of trial in traffic court that found plaintiff ran it... 8th District upholds trial court's refusal to enforce arbitration clause in residential construction contract... Defendant waived right to assert arbitration clause when it did not assert it in Answer, and waited until two months after scheduling conference to raise issue, says 12th District...

If you're one of those lawyers who comb the statutes and administrative codes looking for ways to sue companies for violating little-known regulations, you might want to take a cautionary look at the 1st District's decision last week in Burdge v. Supervalu HoldingsBurdge shopped at one of their stores -- which did business under the name "biggs Hypermarket" (and yes, that is a small "b," and no, I'm not making this up) -- used his credit card, and was chagrined to find that the store's receipt contained his credit card expiration date, in violation of RC 1349.18, Ohio's credit-card-truncation statute.  (No, I'm not making that up, either.)

Burdge was so outraged by this violation of the law that he shopped there another dozen times, paying by credit card each time, before suing them.  The trial court threw out the case, ruling that since the statute specifically required proof of actual injury and Burdge had none, he had no claim.

It gets better.  Not only did the appeals court affirm the judgment, but it cited the numerous cases where Burdge and his counsel had tried to pull the same routine, and hit them both up for close to $3,000 in sanctions for filing a frivolous appeal.

And it gets even better.  The first time Burdge and his lawyer ran the scheme, against a movie theater, the lawyer negotiated a $2,500 settlement.  Because he got the check two days late, the lawyer labeled this a breach of the agreement and demanded twice as much.  The defendant told him to pound salt, and the trial court threw out the case altogether, which the court of appeals affirmed.

Methinks it's time for that lawyer to get a new client.

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Friday: A little of this, a little of that

Friday's usually the day I scan the globe for news of the legally weird, and since this is Friday, that's what we're going to do.  Possibly fitting into that category is the 9th District's decision the other day in State v. Rohr-George, reversing for insufficiency of the evidence the conviction of the wife of a prominent local restaurateur for complicity in the murder of one of her paramours by another one.  As is almost always the case with appeals concerning weight and sufficiency of the evidence, the decision is very fact-centric (yes, that's a word), so there aren't any broad standards of law to be gleaned from reading the decision.  The verdict was somewhat puzzling to begin with; the trial court acquitted Rohr-George of conspiracy to commit murder while at the same time  convicting her of complicity to commit murder.  Finding evidence of the latter -- proof that she solicited or procured another to commit the murder -- is difficult to reconcile with an acquittal of the former.

The newspaper reported that George's husband, despite his cuckolding, had stood by her during her ordeal and funded her defense.  In that light, given that reversals for insuffiency of the evidence generally occur with the frequency of Cleveland sports championships, the significance of the George decision may only be to give emphasis to the observation that the man who said money can't buy happiness never sat in a courtroom.

As regular readers of this blog might have gleaned, I have fairly strong political opinions, but I generally try to stay away from political issues here.  Those issues sometimes take on legal overtones, though, and that's happening again with the Justice Department's dismissal of eight US District Attorneys, for reasons which have varied from "they weren't doing a good job" to "they weren't 'team' players" to "they wouldn't name their children after Karl Rove."  Needless to say, the blogosphere is filled with the arguments pro and con, and if you want to get a fairly non-partisan analysis of the situation, you might want to check out Marty Lederman's post in Balkinization.  Lederman does a particularly good job of disposing of the argument that the whole thing is no big deal because the president can hire or fire whoever he wants, quoting Stuart Taylor in his appearance on Newshour:

You fire the U.S. attorney because you want him to do more death penalty cases, that's fine. You fire him because you want a Republican, that's fine. You fire him because you want to put a patronage appointee in the job, that's fine. You fire him because he's not prosecuting Democrats or because he is prosecuting Republicans, that's not fine.

Finally, last week I had a post about the recent decision by the US Court of Appeals for the District of Columbia, holding that the 2nd Amendment protected an individual, rather than collective, right to bear arms.  Of course, any NRA life member -- like Mitt Romney, who became one last year, although it had absolutely nothing to do with cleaning up his spotty gun rights record in preparation for his run for the GOP presidential nomination -- can recite the wording of the Amendment:  "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."  But courts have traditionally held that the stuff about the "well-regulated Militia" qualified the second part of the Amendment.

The DC Circuit focused on the second comma in that sentence, deciding that it meant that the part up to that point was a prefatory phrase, and the remaining portion was the operative clause of the Amendment, and all that really had to be considered.  Along comes Prof. Dennis Barron of the University of Illinois -- a professor English, not law -- and argues that strict construction demands that the phrase be interpreted according to "what the framers actually thought about commas in the 18th century."  According to Dr. Barron, at least, the prevailing usage of commas at the time indicates that the first clause was intended to qualify the second.

Well, that's one way, of looking at it, I suppose.

Continue reading "Friday: A little of this, a little of that" »

Sex offender residency restrictions

I usually try to do one post on civil cases a week here, but as you might have guessed from the title, that's going to be a stretch this week.  True, the case I'm going to discuss, the 8th District's decision a couple weeks back in City of Parma v. Silvis, is nominally a civil one, but only by buying into the fiction that laws pertaining to sex offenders -- sexual predator designations, residency restrictions -- are really "civil" actions of a remedial nature.

Silvis was caught up in the current craze for imposing stiff residency restrictions on sexual offenders.  In 2006, seventeen years after Silvis' convictions and designation as a sexual offender, the City of Parma asked the court to evict him from his house under RC 2950.031, because it was situated within 1000 feet of an elementary school.  Barely:  the prosecutor's argument was that the distance between the front corner of the school's lawn and the front corner of Silvis' driveway was 997 feet.

But argument is all it was; although the prosecutor stated that if the defendant didn't stipulate to an aerial map, he'd call witnesses to prove the distance, the record contained no stipulation, no witnesses were ever called, and the map never found its way into the record.  The appellate court concluded that the trial judge's order to Silvis to vacate his home was against the manifest weight of the evidence, a decision undoubtedly made easier by the fact that there was no evidence supporting it.

If it sounds like I'm defending the right of sex offenders to live among us, I'm not.  Silvis wasn't a choirboy by any stretch, as his convictions for rape and kidnapping would attest.  I'm not even going to buy into the argument that he'd "done his time," and shouldn't suffer further punishment or humiliation.

But like so much of the criminal justice system, residency restrictions on sex offenders are a classic example of the Law of Unintended Consequences.  The idea was to protect children from "stranger danger," the pedophile lurking around playgrounds and schools.  Fortunately, while child abductions get the media coverage, they're exceedingly rare; about 80-90% of child molestations are perpetrated by acquaintances or family members, and residency restrictions don't do anything to effect that.  All the available evidence indicates that sex offender restrictions haven't done anything to reduce sex crimes against children.

If the laws were merely ineffective, that wouldn't be a problem, but there's evidence to suggest that they're counterproductive in several ways, as the Iowa County Attorneys Association, hardly a pro-criminal organization, noted in a recent report.  Echoing similar findings from studies in Colorado, Florida, and Minnesota, the Association noted that such laws tend to result in sex offenders wind up bouncing around to various residencies or even becoming homeless, making them harder to track.  One state found that the net result of its residency restrictions was no change in the rate of child sex abuse offenses, but a doubling of the number of sex offenders who were supposed to register with police but hadn't.

Complicating all this, of course, is the blunderbuss approach of "sex offense" categorization.  It would be one thing if the registration requirements were applied only to convicted child molesters, but the classification of sex offenders subject to residency restrictions often goes far beyond that.  Oklahoma, which prohibits sex offenders from living within 2,000 feet of a school or day care center, includes a conviction for urinating in public as a sex offense.

But as in most aspects of criminal justice, there's far more political gain in pursuing harsh policies than in pursuing sensible ones.  On Tuesday night, the Green Bay city council approved a law banning sex offenders from living within 2,000 feet of a school, church, park, day care center, or youth facility, essentially making all but a small sliver on the north side of the city off limits.  And last week the City of Upper Arlington, a suburb of Columbus, Ohio, passed an ordinance not only restricting sex offenders from living with 1,000 feet of any "School Premises, Licensed Daycare Facility, Preschool, Any Public Park, Swimming Pool, Library or Playground," but from being employed within 1,000 feet from those areas as well.

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Recanted testimony

I talked yesterday of appellate courts making gutsy rulings in criminal cases, reversing where the easiest course would be affirmance.  Cases on "technical" issues, like motions to suppress, are one category where courts will usually bend over backwards to uphold the result, and another category involves those cases which involve truly appalling crimes.

And there are few more appalling crimes than a father anally raping his eight-year-old daughter, which is exactly what the defendant was convicted of in State v. McConnell.  Despite the fact that the daughter's testimony at trial indicated that the defendant may have only placed his penis on her buttocks rather than penetrating her, the medical testimony about a "small, anal fissure" on the daughter was enough to get the defendant convicted, and enough to get his conviction affirmed.

Almost three years later, the defendant requested leave to file a motion for new trial, the solitary evidentiary basis of which was an affidavit from his wife stating

1. I am the wife of Michael McConnell and the mother of the alleged victim in this offense.

 2. Sometime in January 2006, my daughter came to me and said that she felt very bad. She told me that nothing had happened between her and her father, that she may have dreamed that this had happened.

 3. Further, affiant saith naught.

The trial court denied leave without conducting an evidentiary hearing, finding that the defendant could have discovered the evidence within the 120-day period after trial with "due diligence," and that the affidavit wasn't sufficient because it "contained hearsay" and because it "merely impeached the daughter's former testimony."

While there are any number of appellate decisions the 2nd District could have hung its hat on in affirming that ruling, it didn't.  It noted first that the question at this juncture was not whether a new trial should be granted, but whether the defendant was unavoidably prevented from discovering the evidence within the 120-day period after trial.  Somewhat bewilderingly, the trial judge had concluded that if McConnell believed his daughter had provided false testimony, he should have contacted her via either his attorney or his wife, and by not doing so he had failed to use "reasonable diligence" in discovering the evidence.  The appellate court flatly rejected this reasoning, holding that "as a policy matter, we are reluctant to embrace a rule that would require a father convicted of raping his eight-year-old child to pursue the victim to obtain a recantation of her trial testimony." 

The most interesting aspect of the opinion, though, was its treatment of the signficance of the affidavit.  There are a host of cases holding that newly-discovered evidence which merely contradicts or impeaches testimony at trial cannot serve as a basis for granting a new trial.  In rejecting "a per se rule excluding newly discovered evidence as a basis for a new trial simply because that evidence is in the nature of impeaching or contradicting evidence," the court made an important distinction:

The test is whether the newly discovered evidence would create a strong probability of a different result at trial, or whether it is merely impeaching or contradicting evidence that is insufficient to create a strong probability of a different result.  Additionally, in [State v.] Wright, we found that an affidavit recanting trial testimony by a key prosecution witness does more than merely impeach or contradict the witness's prior testimony. We noted that such an affidavit, if believed, would establish the defendant's innocence and, therefore, on its face creates a strong probability of a different result.

There are some things that McConnell leaves to be desired, mostly in terms of vaguenesss of the outcome:  the court found that the issue was "whether the trial court should have granted McConnell leave to move for a new trial or at least held a hearing on the issue."  Since the court was pretty clear on the point that the was unavoidably prevented from discovering the evidence with the allowed time period, a better approach, in only in terms of judicial economy, would have been to hold that leave should have been granted, and then have the trial judge hold an evidentiary hearing on whether the new trial should be granted, obviously focusing on the actual testimony of the daughter, as opposed to her mother's affidavit.

That quibble aside, the court should be complimented for its thorough and reasoned approach to a very troubling case.  And if you've got a case of recanted testimony, this decision is the place to start.

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When courts do right

It's tough to get a case reversed in the court of appeals, and that's doubly so for a criminal case.  For all the talk of hardened felons getting off on "technicalities," you'll see many more instances when a court will justify a dubious outcome by invoking that old standby, "harmless error," or parroting the line about how "a defendant is entitled to a fair trial, not a perfect one."  Close calls almost always go the state's way, and that's especially true if the case involves a clearly guilty defendant arguing a suppression issue, or a defendant charged with a heinous crime.

So I'd like to highlight a couple of decisions that went the other way last week.  The one for today is the 12th District's decision in State v. Scott, where the defendant was convicted of a cocaine sale largely on the basis of a statement she made to a police officer.  The defendant's lawyer filed a motion to suppress, but the trial court denied it because it was filed more than 35 days after arraignment.  The defendant's appeal focused primarily on the issue of ineffective assistance of counsel.

Even had the motion been filed properly and heard, it might've been a close call.  There was some question whether the defendant was really "in custody" at the time she made the statements, and the appellate court noted that the record wasn't at all clear exactly when the defendant was given her Miranda rights.  It would have been very easy for the court to conclude that, in light of that, the defendant had failed to show affirmatively that she'd been prejudiced by her attorney's actions; there are literally hundreds of such decisions, affirming cases where attorneys didn't file suppression motions, and in general you've got a slightly lesser chance of hitting the Mega-Lotto than you do of getting a case reversed for incompetence of counsel.  In fact, the only reversals I've seen for failure to properly file a motion to suppress were cases where the motion was a clear winner.

Nonetheless, the court reversed.  Actually, it may be that they were more troubled with the trial judge's handling of the motion to suppress than with the lawyer's handling of it.  The rule requires the motion to be filed within 35 days of arraignment of 7 days before trial, whichever is earlier, but allows the court to accept filings outside that time "in the interests of justice."  The arraignment was in May of 2005, and the trial date was set for July 26, 2005.  The motion to suppress was filed on July 18, eight days before trial, but the judge booted it because it was more than 35 days after arraignment.  The trial was then continued for another four months.  Object lesson for appellate attorneys:  it's a lot easier to get a case reversed if the appellate court feels the defendant didn't get a fair shake from the trial judge, and one of the ways of showing that is if the trial court is a stickler about time periods at the expense of deciding issues on their merits.

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Courts Update

The most notable decision out of the Ohio Supreme Court this week was a disciplinary case involving a Cleveland lawyer who'd put money he'd gotten from his client for fees in his trust account, then kept it there to shield it from his creditors.  He was already under indefinite suspension (this incident occurred before that, but came to light after), so they gave him another indefinite suspension.  Two justices dissented, arguing that the second indefinite suspension should have been consecutive to the first, rather than concurrent with it.  I have a feeling that's not going to make a lot of difference.... On to the courts of appeals:

Civil.  1st District reverses summary judgment for hotel, holds that floor mat which lifted up because of wind when door opened not open and obvious hazard; reviews "floor mat" cases... 8th District affirms judgment for spoliation of evidence where store employee taped over video of plaintiff's arrest for supposedly shoplifting... In prisoner defamation lawsuit, 12th District holds that allegation of racism is not slander per se but slander per quod, thus requiring pleading and proof of special damages... 7th District upholds trial court's ruling that records concerning plaintiff's consultation with attorney re a medical malpractice claim were discoverable over claim of privilege, and that they showed plaintiff aware of her claim more than one year before she filed suit...

Criminal.  1st District holds that Ohio Department of Health director's certification of the breathalyzer test solution not "testimonial" under Crawford... 8th District rules that observation of hand-to-hand exchange sufficient to establish not merely reasonable suspicion for stop, but probable cause for arrest... 5th District finds insufficient basis in record for trial court allowing defendant to represent himself... 4th District reverses conviction because trial court instructed jury on self-defense without telling them that defendant's burden was only preponderance of the evidence...

This week's Captain of the Dummy Team is the defendant in State v. Dickey, who unsuccessfully sought to suppress the contents of a phone conversation between her and her boyfriend, in which the two discussed a drug deal, leading to Dickey's arrest for drug trafficking.  The circumstances surrounding the interception of the conversation weren't exactly Orwellian: the boyfriend happened to be an inmate of the county jail at the time.  Dickey's argument was that while the boyfriend might not have had a reasonable expectation of privacy when he made the call, she did, an argument which might have fared better had it not been for this:

At the beginning of every inmate-originated telephone call from the jail, a recorded voice informs the parties that the calls are subject to monitoring or recording. In fact, during at least one of the telephone conversations between Wymer and Dickey, the two can be heard laughing over the fact that when Dickey tells the recorded voice to "shut up," the recorded voice complies.

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Good Business

I should have listened to my mother when she told me I should become a clerk for a US Supreme Court justice; according to this article, the going rate for bonuses the big law firms are paying for Supreme Court clerks coming out into private practice is a cool $200,000.  That's on top of a salary of about $150,000.  Not too shabby for having to spend two years helping Scalia research what James Madison had to eat for breakfast during the Constitutional Convention in 1787 in an effort to divine what the General Welfare Clause means.  This is justified by the firms on the grounds that having a former Supreme Court clerk on their masthead is a good investment:  getting a client to part with the major dollars necessary to take a case to the Supreme Court is presumably easier if you've got somebody on staff who can can regale the client with anecdotes about exactly what Ruth Bader Ginsberg wears under those robes. 

There's been some wailing and gnashing of teeth on this, especially by Justice Kennedy, whose angst is probably heightened by the fact that the bonus comes perilously close to the $203,000 a year he earns for being a Supreme Court Justice, as opposed to clerking for one.  Of course, there's a side to the clerk's story, too:  as one of them pointed out, $200,000 can go pretty quickly, what with having to pay off your student loans and ponying up the down payment for a house.  In the immortal words of Marlon Brando in Apocalypse Now, "The horror... the horror..."

But this opens up an interesting avenue of inquiry.  This article discusses a case currently pending before the Court, where a high school student was suspended for wearing a t-shirt with the nonsensical message, "bong hits 4 Jesus."  Actually, rather than presenting constitutional issues of momentous importance, the case appears to be a pissing contest between the participants:  the student admitted he wore the t-shirt to annoy the principal, and the resulting ten-day suspension seems to be a validation of that intent, rather than an attempt to preserve the safety and good order of the school.  More notable is the fact that the participants aren't paying for this:  the ACLU is representing the student for free, and Ken Starr and some lawyers from Kirkland Ellis are doing the same for the school.

In fact, given the cachet a law firm acquires for handling a case before the Supreme Court, it's not surprising that there been an increased tendency to have law firms offer their services in that regard.  So, on the one hand, you have firms paying big money to hire law clerks so they can get more Supreme Court cases, and then turning around and handling the cases for cut rates or no money at all.  Doesn't seem to make a lot of business sense.

It makes a good bit more sense, though, than a small Batavia, Ohio, law firm displayed in hiring Candace Vail, a 60-year-old woman who recently pled guilty to milking the firm out of over $1 million while employed as their bookkeeper.  As this article notes, Vail wasn't exactly apologetic before being sentenced to a six-year term of imprisonment:  she essentially contended that the law firm was so miserly in rewarding her for her service that she was compelled to steal from them.

Then again, Vail might have a valid point that the firm's salary of $12.60 per hour wasn't commensurate with her initiative and skills: 

Vail took client checks made out to Goodman & Goodman from the mail, deposited them into little-used firm accounts and wrote 1,325 checks to herself and her family. She forged attorney names on another 91 checks she wrote to herself, according to court records.

She even duped the Ohio Supreme Court, which began investigating shortly before she was caught. When the firm's trust account, which by law must be kept by law firms, was overdrawn, the bank alerted the Ohio Supreme Court.

Vail intercepted letters notifying the attorneys about the investigation, forged attorney signatures on documents and told Ohio Supreme Court officials that they should deal with her.

The sobering aspect of that for me was trying to figure out how long somebody would have to work for me to steal $1 million, let alone do so without me realizing it.

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Supreme Court Update

I mentioned the other day that you can view Ohio Supreme Court arguments via streaming video on their website.  It's not exactly edge of your seat entertainment, but it can sometimes be interesting, and it's a great learning resource if by some chance you have to go down to Columbus and pitch a spiel on your case to the Seven Robed Ones. 

I discussed the argument on a civil appeal the other day, but there were arguments on several criminal cases this week that bear mention.  The first is State v. Lomax, a case out of the 1st District which threw out a murder conviction because it found the jury waiver invalid.  The critical question in the case is whether the court had to engage in a colloquy with the defendant concerning the waiver, or could simply rely upon the defendant's execution of the written waiver.  Judge Painter did his usual good job of analyzing the case law on the subject, concluding that because Ohio's statute requires the waiver to be done in "open court," some sort of dialogue was required.  In this case, the only mention of the waiver in open court was this statement by the judge at the outset of the trial:  "Okay. I understand we are finally ready on the Lomax case. Since there's going to be a jury waiver, does the state care to make an opening statement at this time?"

Actually, I was somewhat surprised to see that the law is so undemanding in this area, even on the Federal level.  Criminal Rule 11 requires a court to engage in an extensive colloquy with the defendant when accepting a plea, in order to comply with the Supreme Court's dictate in Boykin v. Alabama that the record must demonstrate that any waiver of constitutional rights is "knowing, intelligent, and voluntary."  Yet even the majority in Lomax concludes that just a solitary question by the trial judge -- "you signed this waiver, right?" -- would be sufficient to satisfy the requirement that the waiver be done in open court.

I think the Supreme Court's likely to uphold the decision in Lomax, but it will be interesting to see how far they go in specifying exactly what the judge has to do.  From my viewing of the oral argument, it's likely that the requirement will be minimal.  That's unfortunate.  Judges are required to go to some lengths to make sure that a defendant understands that a guilty plea involves relinquishing his constitutional rights to confrontation of witnesses, self-incrimination, and the like.  Given that we're talking about one of the four boxes that form the basis of American liberty (jury, ballot, soap, and ammo), something more than a judge's off-hand reference to it should be required to find a valid waiver.

Another case that was argued this week was the 3rd District's decision in State v. Geeslin, which I discussed here when it first came down in June.  It involves the issue of whether the destruction of evidence -- in this case, the videotape of an arrest -- requires dismissal of the charges.  The Geeslin court concluded that it didn't, because the defendant hadn't requested the evidence before it was destroyed. 

As I mentioned in my note, the general rule that's been adopted by the courts is that if the defendant had made a request for the the evidence before it was destroyed, the state would then have the burden of proving that the evidence wasn't exculpatory.  A more logical approach would be to require the state in that circumstance to show that there was no bad faith in the destruction.  The current approach is more beneficial to defendants, of course -- it's a lot easier for the state to prove lack of bad faith than it is for them to prove that the evidence wasn't exculpatory, for the simple fact that since the evidence no longer exists it's almost impossible to prove what it shows.

There's an interesting aspect to Geeslin, though, and Justice Pfeiffer touched on it in the oral argument.  The case involved a DWI arrest, and the defendant was stopped for crossing the white lane on the roadway several times; the videotape would presumably have determined whether that had actually happened.  But this raises a question: since the destroyed evidence went only to the legality of the stop, was it truly exculpatory?  The defendant's guilt of DWI was fairly clear:  he blew a .176 on the breathalyzer.  "Exculpatory" evidence is arguably concerned with the question of defendant's guilt or innocence, not evidence which goes to a motion to suppress.

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Second (and third) chances

Short note today.  One of the problems of coming back from vacation is all the stuff that awaits your return.  Then again, I remember talking to a lawyer several years ago, who told me that what he does when he's on vacation is have his secretary email or fax his work to him every day.  That way, he tells me, he doesn't have to worry about catching up when he gets back.  Well, yeah, I guess if you work when you're on vacation you don't have to work extra hard when you get back from vacation, but that pretty much defeats the purpose of going on vacation, don't you think?

Then again, I probably would have a better chance of catching up on my work if I didn't do things like spend a half hour yesterday afternoon watching the videotape of the oral argument in the Ohio Supreme Court that morning in the appeal from the 8th District's decision in Olynyk v. AndrishThe plaintiff initially sued the Cleveland Clinic and several employees as John Doe defendants.  The case was dismissed by the court at the plaintiff's request under Rule 41(A)(2).  Plaintiff refiled, and then filed a notice of dismissal under 41(A)(1)(a).  When the plaintiff filed a third time, the court dismissed it, saying that previous dismissal was with prejudice because it was the second time plaintiff had dismissed.

As most civil lawyers know, there are three ways for a plaintiff to dismiss a case:  by filing a notice of dismissal under 41(A)(1)(a), by filing a stipulation of dismissal, signed by all the parties, under 41(A)(1)(b), or by order of court under 41(A)(2).  The effect of a dismissal under 41(A) is specified at the end of that paragraph:

Unless otherwise stated in the notice of dismissal or stipulation, the dismissal is without prejudice, except that a notice of dismissal operates as an adjudication upon the merits of any claim that the plaintiff has once dismissed in any court.

The question presented is a pretty simple one:  does the "double dismissal rule" -- the second being a dismissal with prejudice -- apply only if the defendant has filed two notices of dismissal under 41(A)(1)(a), or does it apply if the first dismissal was through one of the other two mechanisms, stipulation or court order?  (Obviously, if the second dismissal was by either of those two methods, it wouldn't prevent the plaintiff from refiling:  the rule clearly provides that only a notice of dismissal operates as an adjudication on the merits.)  The 8th District held that both dismissals had to be notice dismissals for the plaintiff to be precluded from refiling, and just about every other court which has examined the situation has agreed; in fact, the only dissenting view is dicta in a 5th District case from three years ago.

Other than that, though, the court didn't engage in much analysis, and from a policy standpoint there's at least an argument to be made that a second dismissal of a case by notice should preclude a third filing, regardless of how the first dismissal was accomplished.  I've written before of the ways in which the voluntary dismissal rule is abused, and I'm tempted to think that the Supreme Court might use this case as a means of signaling its displeasure with that abuse.  Unfortunately, Olynyk has some other baggage:  as noted, there's a question of whether the first dismissal even applied to Andrish, since he wasn't named specifically in the first lawsuit.  I wouldn't be surprised if the Court ultimately decided that it shouldn't have heard the appeal in the first place. 

One other thing to keep in mind when dismissing cases:  as the 8th District's decision last week in Conway v. RPM, Inc. points out, there's also a "two-dismissal rule" with regard to the savings statute, RC 2305.19.  Under that statute, you can refile within a year after a case has been dismissed otherwise than upon the merits, but you can only use the statute in that fashion once.  In that case, the first filing had been dismissed for want of prosecution. The plaintiff refiled within the one-year period, but ultimately that case was dismissed by stipulation.  Within a year after that, the plaintiff attempted to refile again, but the court of appeals agreed with the trial court that a second attempt to use the savings statute was barred.

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March Madness

For those of you interested in college hoops, the number of ways in which you can waste your time has just been increased by one:  in addition to spending countless hours at the office working the bracket pools, you can also go to Bracketmaster.  The site allows you to input various criteria to determine past NCAA tourney results; for example, since 1985, No. 1 seeds are 88-0 in the first round.  Beyond that, though, it gets a little dicey; only four of the seventeen No. 1 seeds from the Big Ten have advanced to the Final Four, where two of them have won.

None from Ohio State,though; in fact, Ohio State hasn't been a No. 1 pick since 1992, where they got bumped in the Elite Eight.  This could be the year, though.  Or not.  There's a guy at my rapid stop who proudly wore a scarlet jacket emblazoned with the years that the Buckeyes won the national championship in football.  He disappeared for a week in January, presumably for the game.  I haven't seen him wearing the jacket since.  Actually, I'm surprised that he didn't take the gas pipe after Ohio State's performance in the Mexican Snack Food Bowl.

So what's that got to do with law?  Nothing.  But this does (and yes, I know I have to work on my transitions):  yesterday I mentioned the DC Circuit Court of Appeals' decision in Parker v. District of Columbia, which held that the 2nd Amendment right to bear arms was an individual right, as opposed to a collective one, i.e., a right that was dependent upon one's membership in a militia.  The ink has hardly dried on the decision before discussion has turned to its effect upon statutes illegalizing the possession of firearms.

This isn't to suggest that lawyers start filing motions to dismiss gun specs on the grounds that their client had a constitutional right to pop a cap in somebody.  Obviously, there's no constitutional hurdle in penalizing the use of a gun in a crime.  But it's certainly arguable that Parker raises a problem with laws prohibiting the carrying concealed weapons.  Those laws were upheld back in 2003 by the Ohio Supreme Court in Klein v. Leis, but that attack was based on the Ohio Constitution's right to bear arms clause.  While the Court did a good job analyzing the state constitutional issue -- noting, for instance, that the first concealed carry law was passed within a few years of the ratification of the state constitution's bear arms clause -- the same analysis couldn't be applied to the 2nd Amendment.  What's more, because of the nature of the state constitutional issue, the Leis court avoided the problem that recognition of the right to bear arms as a fundamental right would entail.  Traditionally, laws infringing upon fundamental rights are subjected to strict scrutiny:  the state must show a compelling interest in doing so, and must show that it has used the narrowest means available.  It's not impossible by any stretch to see concealed weapons laws threading that needle, but the issue's certainly worthy of being raised.

A more potent line of attack might be on the gun specification statutes.  Obviously, no one's going to successfully contend that the 3-year enhancement for brandishing or using a gun during an offense presents constitutional problems, but the 1-year enhancement for possessing a weapon during a crime may be another matter.  To be sure, Federal laws contain plenty of enhancement provisions, but there's a critical difference:  under most Federal laws, a jury has to conclude that the gun was used in furtherance of the crime.  Under Ohio law, there's no such requirement:  if your client is caught with drugs in his kitchen, and he has a gun in the dresser in his bedroom, he's eligible for a 1-year enhancement to his sentence without the state ever having to contend, let alone prove, that the gun had anything to do with the crime.

The last area of Parker's potential application is with regard to weapons under disability statutes, which prohibit those convicted of certain crimes from ever owning a firearm.  Can the state bar someone with a criminal conviction from his constitutional right to bear arms, any more than it could limit his right of free speech or permit warrantless searches of his property?  Again, the strict scrutiny analysis comes into play:  while the state could probably show a compelling interest in prohibiting those convicted of violent crimes from owning weapons, the interest in prohibiting those convicted of possessory drug offenses is much less clear.

This could be jumping the gun, no pun intended:  obviously, a decision of the DC Circuit Court of Appeals is of no precedential effect here in Ohio.  Still, Parker's holding is supported by the more recent scholarship on the 2nd amendment, and the early betting line is that the Supreme Court is finally going to have to tackle the question.  Raising the issue now at least preserves the question for later habeas review.

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Court update

Nothing much from the state Supreme Court this week.  Probably the biggest decision of note was from the District of Columbia Court of Appeals, which struck down the capital's gun law, one of the stiffest in the nation.  As those familiar with the gun control debate know, the argument revolves around whether the 2nd Amendment provides an individual right to bear arms, or guarantees only a collective right, in the context of a militia.  The US Supreme Court has never given a definitive decision on this, but it may get its chance:  the DC Circuit came down firmly on the side of an individual right.  If the decision is appealed, it could wind up on the Supreme Court's docket just in time for the election next year.  You can read more about the case here.

On to the Ohio courts of appeals...

Criminal.  1st District vacates order of restitution, says trial court must consider defendant's ability to pay... Trial court erred in placing burden on doctor to prove that he complied with laws regulating prescription drugs in trafficking prosecution, 2nd District holds... 8th District holds that trial court has no jurisdiction to grant motion to withdraw plea after judgment has been affirmed on appeal...

Civil.  2nd District reverses summary judgment, holds bank may be liable under respondeat superior for injuries inflicted by bank manager in removing customer... 8th District holds that employee who made fliers for work at home, then was injured driving to work after dropping them off at post office, not eligible for workers comp under "coming and going" rule... 9th District holds that injury sustained in assault by co-employee compensable under workers comp...

If you've ever contemplated getting out of the law business and opening your own hotel -- and who of us hasn't? -- meet Thomas H. Starks, the pro se plaintiff in a case out of the 1st District last week.  Starks checked into an Econo Lodge at 4:40 in the morning, missed his wake-up call at 7:30, and slept right through the hotel's check-out time of 11 AM.  Upon being charged for two days, he retaliated by filing suit for return of one day's charge, $750,000 in damages, and free lodging for life at the Econo Lodge.  (As might be gathered from a place that charges $46 a night, this last request is reminiscent of the joke, "...and second prize is two weeks at the Econo Lodge!")

The court wasn't having any, of course, not only affirming the trial court's dismissal of the case but awarding sanctions against Starks for a frivolous appeal.  Not the least of the reasons for that was the court's bewilderment that Starks had filed suit in Hamilton County, when the Econo Lodge was located in Tennessee.

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California Dreamin'

Well, I started the week with a reference to Peter, Paul & Mary's musical ouevre, and I'm finishing it with one to the Mamas and Papas.  I've had a wonderful time on vacation -- or, presumably, I will, since I'm writing this three days before I leave for it -- but in anticipation of that, I'm going to let others do the heavy lifting today.

We'll start with Orrin Kerr of the Volokh Conspiracy, who takes a look at a recent 9th Circuit decision where the court had upheld a search warrant for child pornography on the sole basis that the defendant had received an email from a known overseas distributor of it.  The majority had determined this was sufficient probable cause, and the dissenter argued that it wasn't, because there was no showing that the defendant was aware that the email contained child pornography, or even aware of the fact that he had received the email.  Kerr makes a persuasive argument that all three members of the court got it wrong.  The 4th Amendment is focused on the items sought to be seized, not the defendant's guilt:  the appropriate test is simply whether there's probable cause to believe that the items could be found on the defendant's computer.  Whether the defendant knew they'd be there is irrelevant.  It's an interesting read

As some of you may have heard, there's an ongoing furor over the recent sentencing of two border patrol agents to over a decade in prison for shooting a drug smuggler and then trying to cover it up.  Doug Berman's Law and Sentencing Policy blog has details on the case.  Most of the outrage has been directed at the length of the sentence -- although that might change with yesterday's news that the prosecution may have hidden the fact that the smuggler, who was granted immunity, was subsequently arrested in another drug case before the trial in this one, and the prosecutor sorta kinda forgot to tell the defense about that. 

As the prosecutor in the trial noted at the time of sentencing, however, the sentence was pretty much mandated by the guidelines Congress established, and the mandatory 10-year sentence it imposed for any crime involving a gun.  Many of the people getting exercised about the agents' plight couldn't have given a flip about black kids serving twenty-year-plus sentences for possession of half a kilo of drugs.  If it's true that a conservative is a liberal who's been victimized by crime, it may be that a liberal is a conservative who's been accused of one, or at least one who's had an opportunity to see the awesome power the government can bring to bear on someone it wants to lock up.

Finally, on a lighter note, last week we discussed the Ohio Supreme Court's decision upholding the state law prohibiting consensual relations between adult stepparents and stepchildren from an attack that they were rendered unconstitutional by the US Supreme Court's decision in the sodomy case a few years back, Lawrence v. Texas.  So it's only appropriate to conclude with a piece by Howard Bashman over at Law.com on how Lawrence has made the 11th Circuit a battleground for lawsuits about sex aids.  The piece is thick with sexual innuendo -- it's titled, "11th Circuit's Abuzz With Sex Toy Litigation" -- and the double entendres come hard and fast, but it's a fun read.  And, it turns out, the latest blow was delivered by the 11th Circuit when it recently ruled that public morality was a sufficient rational basis, after Lawrence, to uphold an Alabama law prohibiting the commercial distribution of devices "primarily for the stimulation of human genital organs."

The decision was handed down on Valentine's Day.

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Crawford's continuing evolution

Probably one of the most significant criminal law decisions in the past decade was the US Supreme Court's ruling in Crawford v. Washington, holding that admission of "testimonial statements" at trial violate the Constitution's confrontation clause.  As I noted in my first post on the case, the courts have been wrestling since then with the issues raised by the decision. 

That they've not been entirely successful in that regard is indicated by the 6th District's decision last week in State v. Riley, where the trial court had allowed into evidence a 911 call by a witness to a robbery, and the police officer's statements about what the witness told him regarding the perpetrators when the officer first arrived on the scene.  The appellate court held that these weren't testimonial statements, basically tracking the Supreme Court's decision last summer in Davis v. Washington, which I discussed here; essentially, Davis held that a statement wasn't testimonial if the "primary purpose is to obtain police assistance to meet an ongoing emergency."

Riley suffers from the same problem that a lot of the post-Crawford cases do:  the failure to understand the interplay between testimonial statements and hearsay.  Some courts commingle the two, such as this 9th District decision which found that as long as a statement qualifies under a hearsay exception, it's not testimonial, a holding which Crawford specifically rejects.  (In fact, the 9th District decision relied principally on Ohio v. Roberts, which was overruled by Crawford.)  As spelled out in these excellent opinions -- one by Judge Rogers of the 3rd District, discussed here, and one by Judge Gallagher of the 8th District, discussed here -- Crawford requires a two-step analysis:  you have to determine whether a statement is testimonial and, if it isn't, you then have to determine whether it qualifies as an exception to the hearsay rule. 

The notable problem with Riley is that the court discusses the first issue -- whether the statements were testimonial -- but never gets to a discussion of the second.  While it's certainly conceivable that both the 911 call and the witness' statement to the police officer could qualify under the "excited utterance" exception to the hearsay rule, there's nothing in the opinion to indicate that the circumstances here were sufficient to warrant that:  there's no mention of the state of mind of the witness, either during the call or at the scene.  The latter is especially a problem; while it's easy to imagine the requirements for the excited utterance exception being established in a call about a crime that's in process, it's less obvious that those requirements would be satisfied in a situation where the witness is discussing the event after the perpetrators have fled.  In fairness to the court and appellate counsel, it may be that the evidence was so clear on that score that no one raised it, but the court's decision would have been better had the issue been at least discussed. 

The bigger problem with Riley is the problem with Crawford:  a lack of any clear standard for determining whether a statement is testimonial or not.  The courts have moved to fill this vacuum by concentrating on the intent of the maker of the statement, as the Supreme Court did in Davis and the Ohio Supreme Court did last fall in State v. Stahl, discussed here.  In fact, the syllabus of Stahl provides that

In determining whether a statement is testimonial for Confrontation Clause purposes, courts should focus on the expectation of the declarant at the time of making the statement. . .

In short, if the declarant expects the statement to be used at trial, it's testimonial, and if she doesn't, it's not.  Missing from these opinions is any compelling analysis of why the declarant's intentions should be controlling on this score.  For example, in deciding whether a statement is admissible under the excited utterance exception to the hearsay rule, the circumstances surrounding the making of the statement -- whether the declarant was in fact "excited" -- are determinative, not whether the declarant intended the statement to be an excited utterance.  What's more, focus on the intent of the person making the statement leads to the somewhat absurd result that if the declarant intends for the statement to be admitted at trial, it can't be, and if she doesn't intend for it to be admitted, it can be.

But it's not clear what might provide a better analytical framework.  This might be a problem with the analytical framework of Crawford itself, and the interpretative method upon which the decision was based.  Scalia's majority opinion is long on history -- delving into just about every facet of the concept of confrontation, from the Magna Carta to the Constitutional Convention -- but short of consideration of the ruling's real-world impact.  That's a problem with originalism itself, as a method of constitutional interpretation, especially in the context of criminal cases.  Whatever the Founders might have intended, they were writing at a time when the very concept of law enforcement through an established police force was largely unknown.

There are a bunch of decisions on Crawford-related issues coming down the pike, especially with regard to DNA and other scientific testing.  There's one pending over at the 8th District right now, involving the issue of a scientific process in which a number of different people participate:  can one person come in and testify about the process, or does Crawford require that each one testify?  As I said a while back, I think when the smoke clears, Crawford is not going to have the significance that a lot of people thought it would when it was first decided.

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Fender-benders and Memory Lane

Remember the Golden Era of personal injury law, when the whiskey was strong, the women were wild, and anybody who didn't get at least five times specials in a rear-ender with no property damage risked investigation by Disciplinary Counsel?  And then we got a little too greedy until the public said enough, and now you're happy if the insurance company offers you more than $2,300 when your client's got $1,700 in meds.

Of if they offer you anything at all.  The other day, I realized that I hadn't run into a "zero damage" case in a while.  You know, the ones where the defendant admits liability, and the jury comes back with a plaintiff's verdict but awards no damages.  I wrote a post a short while back about three of them that were handed down in just one week in December, and another one earlier last year taking stock of the case law on that issue.  But, as I said, I haven't seen any in about three months now.  It could be that juries are becoming more magnanimous, or it could be that plaintiffs' counsel just doesn't bother appealing anymore when that happens.  Gee, I wonder which one it is.

The one bright spot is provided by the 8th District's decisions in prejudgment interest cases; most of them have gone in favor of plaintiffs, as I detailed here, and in one mentioned in the post I cited above, in which the court affirmed $32,000 in prejudgment interest where the insurance company had offered $6,300 (in response to meds of $8,100, and a demand of $20,000), only to see the jury trudge back into the courtroom and award the plaintiff $115,000.  I went back and checked to see which insurance company had been involved in those cases, and while I won't mention any names, it seems likely that very few members of the 8th District bench are in good hands.

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Leavin' on a Jet Plane

Actually, that's what I did yesterday.  ("Yesterday" in terms of when you're reading this, "three days from now" in terms of when I wrote it.  The software I use for this blog, something called Wordpress, allows me to set the time when I want a post to appear.)  I'm off to California for a week, the Monterey area; actually, we'll be staying just south of it, in the small town of Carmel, where I hope to get a chance to meet with Clint Eastwood and discuss his shortcomings during his term as mayor of the town.  I guess you'd say I feel lucky.

Needless to say, I'm not going to be taking time out from vacationing to rush back to the hotel in time to read a bunch of cases and blog my thoughts on it.  Nor am I going to devote the entire weekend before the vacation to write five days worth of posts before I leave.  Then again, I don't want my legions of faithful readers to lapse into despondency when they log in here only to find the cupboard bare.  So instead, I'll devote the next few days' posts to a sort of retrospective of some things I've seen developing in the law in the ten months I've been doing this. 

I mentioned last week that I thought the 8th District had become a little more liberal in its criminal cases, although I attributed that to a backlash against prosecutorial overzealousness more than anything else.  Whatever the reason, there have been a number of good cases on search and seizure especially, like this one holding that a suspect's waving down cars in a drug area wasn't a sufficient basis for a stop, or the cases discussed in this post holding that even if there is a basis for a stop, that doesn't equate to an automatic basis for a frisk.

Unfortunately, there's little basis for concluding that the three-decades-long erosion of 4th Amendment rights is going to reverse itself anytime soon.  When you read Justice Scalia's disparagement of the knock-and-announce and exclusionary rules in Hudson v. Michigan, discussed here, or the 6th Circuit's decision in late 2005 that came tantalizingly close to creating a good faith exception for warrantless searches, discussed here, it doesn't seem too far-fetched to conclude that the exclusionary rule itself could go if there's another decade of conservative Supreme Court appointments.

The only promising trend here is the growing willingness of the Ohio Supreme Court to consider extending the protections of Ohio's constitution beyond that recognized under the US Constitution, as they did last summer.  That doesn't offer a lot of solace, unfortunately; at this point, at least in criminal cases, trying to determine which is more conservative -- the Ohio Supreme Court or the US Supreme Court -- is sort of like trying to decide whether you'd rather go riding in a car with Ted Kennedy or hunting with Dick Cheney.

Continue reading "Leavin' on a Jet Plane" »

Court Update

The only Ohio Supreme decision of note -- well, of note to me -- this past week was one I discussed on Friday.  The US Supreme Court came down with one ruling, in Whorton v. Bockting, holding that the decision in Crawford v. Washington regarding the admissibility of "testimonial statements" could not be applied retroactively, i.e., to cases that were final prior to the ruling Crawford in March of 2004.  Now, to the courts of appeals:

Criminal.  1st District holds that possession of drugs and preparation for distribution and sale are allied offenses; this runs contra to several other districts, but is a good analysis... 10th District reverses order medicating defendant because trial court did not make express finding that side affects would not interfere with defendant's ability to conduct defense... 5th District upholds stop where defendant ran from police, rejects argument that there was insufficient basis for frisk because defendant didn't raise issue until end of argument at hearing on motion to suppress... 4th District upholds traffic stop where defendant failed to use turn signal to exit highway, ruling that this required "moving right or left on a highway" under 4511.39(A), thus necessitating signal... 

Civil.  Good discussion of elements of wrongful discharge on public policy grounds in this 2nd District decision... 8th District affirms $2.4 million legal malpractice award where plaintiffs claimed that lawyers' lack of preparation led to inadequate settlement; excellent analysis of causation requirement in legal malpractice cases... Bad week to be a medical malpractice defendant in the 8th District, too:  defendant's verdict reversed here because of improper jury instruction on alternative diagnosis, and dismissal of complaint reversed here because trial court erred in refusing to grant extension to file affidavit from expert...

I'll be off this week, as I'll tell you tomorrow, but I'll make sure you've got something to read while I'm gone.

Continue reading "Court Update" »

Time off for good behavior

The biggest case of note out of the Ohio Supreme Court this week was an affirmance of the 5th District's decision last year holding that Ohio could constitutionally punish consensual sex between a stepparent and an adult stepchild, in State v. Woody Allen, oops, State v. LoweI'd done a post on the case when it was argued before the Court back in October, noting that a reversal was, um, unlikely; my exact words were that "there’s as much chance of our Supreme Court putting its stamp of approval on stepparents messing around with their stepchildren, even adult ones, as there is of the state legislature designating August as Oral Sex Month." 

Turns out I was right on the money as to not only the outcome, but the Court's reasoning.  I'd suggested that the only reason the court took the case was to clean up the appellate court's decision,  which had spent a lot of time talking about there not being a right to consensual sex, even with an adult stepdaughter -- a rationale that might run afoul of the US Supreme Court's holding in Lawrence v. Texas that there's a liberty interest in consensual adult sexual relations.  I'd suggested that the Supreme Court would instead focus on the state interest of preserving the family unit in prohibiting stepparent/stepchild relations, and in their 6-1 decision the other day, that's exactly what they did.

So I guess I'll have to type the rest of this post with one hand, having broken my other arm patting myself on the back.  Hey, this is the guy who said there was no way Al Gore would lose Tennessee in the 2000 election, and that the Pittsburgh Steelers were a lock to repeat as Super Bowl champions, so pardon me while I revel in the rarity about having been right about something.

And I'm going to reward myself for this by taking the rest of the day off from writing serious stuff.  We'll start by saluting the law firm of Low, Ball & Lynch.  No, I'm not making that up; the firm's site can be found here.  They do insurance defense work.  Quelle surprise.  I don't want to even think about what Payne & Fears, LLP specialize in. 

If they specialize in trial work, they'd best be clean-shaven, at least according to the jury consultant who was interviewed for this article.  While no facial hair is best of all, if you're unwilling to dispense with it altogether, keep in mind there's a heirarchy at work:  beards are best, mustaches are in the middle, and "goatees are most likely to discredit a lawyer."  Actually, the best part of the article was the comments below it, particularly this one: 

In his later made for TV movies in he late 80’s and early ’90s, Raymond Burr as Perry Mason had a Beard/VanDyke thing going and he remained undefeated. But that might also have had something to do with his opposing prosecutors seeming never to have heard of the phrase, “I object!”, when he would accuse somebody of the heinous crime while they were on the witness stand.

Oh, and speaking of Al Gore, which we were several paragraphs back, it appears he's suffered yet another blow at the hands of the Supreme Court.

I'm going to be on vacation next week, so I'll put some stuff together over the weekend to keep you minimally entertained/informed while I'm gone.  I'll be back, tanned, rested, and ready, a week from Monday.

Continue reading "Time off for good behavior" »

Refreshment and recollection

One of the things I like about doing this is that it teaches me stuff I never got around to learning.  Like the difference between "past recollection recorded" and "present recollection refreshed."  Sure, it's not up there in importance with the "Tastes great! Less filling!" debate, but understanding it can come in handy.  I think the 1st District got tripped up on that last week in its decision in State v. Henson.

In that case, the victim in a gross sexual imposition case testified on cross that she couldn't remember certain details of the alleged assault.  On redirect, the prosecutor gave her the statement she'd made after the incident, and had her read it aloud.  The appellate court held that was all proper under Evidence Rule 803(5), the exception for recorded recollection.  What made it improper was when the trial court gave the statement to the jury.  And I don't mean "admitted it as evidence," since it never had been.  The jury submitted a question asking for the statement, and the judge marked it as a court's exhibit and passed it on to them, without bothering to tell the defense or the prosecution.  The rule makes clear that the statement can be read, but can't be admitted as an exhibit, much less used the way the trial court did here.

But I'm not sure this was even a case of recorded recollection.  State v. Perry, a case out of the 6th District in 2002, does an excellent job explaining the requirements of that rule.  One of them is that, as the rule implies, the witness has no present recollection of the incident she's testifying about.  If she's just a little fuzzy on the details, then showing her the statement so that she can "refresh her recollection" under Evidence Rule 612 is the way you have to go.

Perry's an interesting case, involving the videotape of a statement made by an alleged child rape victim four days after the incident.  The requirements of 803(5) are

1) the witness has insufficient memory to accurately testify to crucial information; 2) that the witness can show through their testimony that the past recollection recorded was made or adopted when the matter was fresh in the witness's memory; and 3) that the past recollection recorded correctly reflects the knowledge the witness had at the time it was recorded.

Note that last one:  it's up to the witness, not a third party, to show that.  Normally, with a writing, that's pretty easy:  you just show the witness the writing, she testifies that it's hers and was made around the time of the incident, and that's good enough.  Here, the trial court excluded the videotape because the child couldn't testify to anything about it, since she wasn't the one who made it, and didn't remember anything about it.  Videotape is becoming a more frequent evidentiary technique, especially in these kinds of cases, and if you've got one, Perry's definitely a must-read.

Continue reading "Refreshment and recollection" »

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