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.

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?”

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.”

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. Rosenburg.  In 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.

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 Holdings.  Burdge 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.

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. 

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.

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.

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.

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.