April 2007 Archives
No relevant (to me) cases from the Ohio Supreme Court this past week. The US Supreme Court threw out three death penalty cases from Texas, which has become sort of an annual ritual. On the court of appeals front:
Civil. 10th District affirms grant of summary judgment in employer intentional tort case, holds that employer's hiring of employee with criminal record did not give it "substantially certain" knowledge that employee would assault plaintiff... 5th District holds that time-extension provisions of Rule 6(B) do not save voluntarily-dismissed workers comp appeal refiled after one year... 3rd District reverses issue of civil protection order, says evidence insufficient, purpose of CPO not to alleviate "uncomfortable situations"...
Criminal. 1st District affirms search of passenger's purse left in car, and opening of Advil bottle found in purse, pursuant to arrest of driver... 6th District holds that in prosecution for complicity to possess more than ten grams of crack, it's unnecessary to prove that defendant knew what the weight of the drug was... 10th District reverses conviction because trial judge refused to admit statements from a third party confessing to crime defendant was charged with... 8th District affirms conviction where trial court allowed state to reopen case to prove value in theft prosecution after defendant had made Rule 29 motion...
As you may have figured out by now, I always conclude the case update with a "news of the weird" type item, some offbeat decision. I've come to the conclusion that maybe there's something in the water down in Cincinnati, because just about every week I could use one from the 1st District. This week, in an appeal from a case involving whether someone could be discharged from his position as a loan officer because he hadn't disclosed that he'd committed a misdemeanor almost twenty years earlier:
In March 2002, Roth submitted a loan-officer license application to the DFI. Question five asked the applicant, "Have you or has any company for which you have been an officer, or more than 5% owner or director, ever been convicted of or pleaded guilty to any criminal offense, including, but not limited to, theft, receiving stolen property, embezzlement, forgery, fraud, passing bad checks, money laundering, or drug trafficking, or any criminal offense involving money or securities?"
This convoluted sentence scores a zero on the Flesh Reading Ease test. And on the Flesch-Kinkaid grade level, it scores a 28.6, meaning that one needs 28.6 years of schooling to readily understand it.
The court concluded by admonishing the state to "revise its application to be readable by ordinary citizens."
Hey, it could happen.
Yin and Yang, good and bad. The good is the 6th District's decision last week in State v. Hackett. The cops had been tipped off by an informant that on a particular date and time, the defendant would be leaving a particular residence in a particular car with a particular license plate, and would be carrying a particular ounce of cocaine with him. The police staked out the place, and, as foretold by the snitch, the defendant came out and got into the car. The informant called the police and told them that the defendant had the coke on him.
The police pulled the car over, got the defendant out, and patted him down. Nothing. They patted him down again. Still nothing. They called the informant, who told them that the cocaine was located in the defendant's pants pocket. On the third search, they finally hit paydirt, finding an eighth of an ounce of cocaine wrapped in eight little bags underneath the defendant's belt buckle. The whole process, from stop to find, had taken fifteen minutes.
The trial court denied the motion to suppress, but the appellate court reversed. The informant's tip had created a sufficient reasonable suspicion to serve as the basis for a stop. Whether that would have furnished suspicion for a frisk as well is another matter, but the court skipped over that question, because regardless of whether there was need for a frisk, there certainly wasn't need for three of them. As the court pointed out, "the rationale for a protective search becomes attenuated with successive searches." The situation in Hackett isn't going to come up that often, but it's a good case to have when it does.
The bad is presented by the 4th District's decision in State v. Cobb, where the defendant had appealed on two grounds: the failure of the trial court to grant a continuance so that he could retain counsel, and its imposition of maximum, consecutive sentences. The appellate court affirmed, noting that the motion to continue was filed the day of trial, and the defendant had agreed to the sentences.
But there's a little bit more to the story here. I checked the online docket of the lower court case, and it turns out that Cobb was indicted on two first-degree felony counts involving drugs, one for possession and one for trafficking, on March 13, 2006. He was arraigned exactly 30 days later, on April 12. The first, and only, pretrial was held three weeks later on May 4, and the trial date was four days after that. The retained attorney showed up at the pretrial, at which point "he became aware of the complexity of the case and his difficulty in preparing for the May 8th trial date." He filed a continuance on the morning of the 8th, but the trial court denied it. The defendant then pled guilty to the indictment and agreed to serve maximum, consecutive sentences.
I'm not going to spend time picking apart the appellate court's opinion. They make some valid points: retained counsel could have asked for a continuance at the pretrial, but instead waited until the day of trial, when the prosecutor has 15 witnesses subpoenaed and ready to go. In fact, the court noted that the trial judge would have been "hard pressed to justify denying" a continuance if it had been requested at the pretrial "in light of the last minute disclosures by the state." This reference is apparently to the fact that the docket shows the prosecutor filed a supplemental discovery packet a week before the pretrial. Yet the docket also shows that the prosecutor then filed three additional disclosures after the pretrial, the last being on the very day of trial. Why didn't this "last minute disclosure" justify a continuance?
That's almost beside the point, though. One of the problems with us lawyers is that we tend to get so enmeshed with the law that we lose sight of the fact that it's not an end in itself, it's simply a means to end: achieving justice. The court's opinion meticulously tracks each legal argument, without ever once considering the case as a whole. We have a man facing serious charges in a complex case, brought to trial just three weeks after his arraignment -- and just how many of those fifteen witnesses do you think defense counsel had an opportunity to interview in those three weeks? -- with his motion to continue the trial date denied even as the prosecution was filing additional discovery material, and he winds up pleading guilty to the indictment and agreeing to serve the maximum prison time. I'm sorry, but I think it's difficult to reconcile that result with a system that supposedly prizes justice and liberty.
You're set for trial in a criminal case. Speedy trial time runs in a week. You go over to court, and it turns out the judge is in the midst of a trial in another matter. So he continues your case -- for two months. What effect does that have on the speedy trial date?
The 8th District took a look at that question last week in State v. Craig, but didn't specifically answer it. It had taken the state from December of 2004 to January of 2006 to bring Craig to trial. A number of extensions were attributable to the defendant, but there were two that were weren't: the court's sua sponte continuance of the trial date from June 6 until July 26, and from September 29 to October 27, both times because the court was in trial on another matter.
There's no indication that the court was in trial for the full six weeks or month after the two dates, and that's highly unlikely; more probably, the court simply continued it to the next "available" trial date, which in practice here in Cuyahoga County means the next date that the court has fewer than five trials scheduled.
Obviously, there's some limitation to what the court can do here. RC 2945.72 extends the time for "the period of any reasonable continuance granted other than upon the accused's own motion," and there's case law which holds that continuances for extended periods because of "docket congestion" don't cut it. The court in Craig notes that 8th District cases hold that "a sua sponte continuance due to a crowded court docket is deemed reasonable. . . if the defendant fails to object to such court action," thus posing the inference that it would've been deemed unreasonable if the defendant had objected. I don't know about that; on the other hand, it seems that there should be some outer limit to a court's right to extend time under those circumstances.
On the other hand, it's time for a confession: my whining, and that of defense lawyers in general, over the erosion of the defendant's speedy trial rights has a whiff of hypocrisy to it. Except for the situation where our clients are in jail, we couldn't care less when the case goes to trial, or if it ever does.
Much of that is due to a simple understanding of the criminal justice system. Given that the state has the burden of proof beyond a reasonable doubt, time is the ally of the defense: witnesses disappear, or they forget.
But a lot of it is due to our clients, who are in no hurry to face judgment for their alleged sins; to them, "no news is good news" has added meaning. Many of us have had personal injury clients who seem to call every week to find out what's going on with their case. That experience is exceedingly rare in criminal cases. Frankly, I doubt if I've ever had a case where if I'd gone out and told my client, "You're trial's been continued for five years," he'd express anything than utter relief.
While doing the Case Update this week, I ran across two cases from the 8th District that deserve a little more discussion. I'll do one today, and the other tomorrow.
The first is State v. Martin, which was actually in its second iteration before the court. The defendant had been indicted for conspiracy to commit aggravated murder and kidnapping. At his first trial, he moved to dismiss the conspiracy count at the close of the state's case, on the grounds that it didn't specify the overt act that formed the basis of the conspiracy. (And when I say "he," I mean "he" -- he was representing himself.) The prosecution requested an overnight recess "in order to respond in a more considered fashion," and the next day, dismissed the count.
The defendant was convicted, but the court of appeals reversed because there hadn't been a valid waiver of counsel. After conviction at the second trial on both the conspiracy and kidnapping counts, he appealed again, claiming that double jeopardy barred his retrial on the conspiracy count because that count had been dismissed at the first trial.
That's not as much of a no-brainer as it might appear. As Judge McMonagle's thorough opinion indicates, jeopardy does not attach to a dismissal where it is (a) at the request of the defendant, and (b) is not related to guilt or innocence. (Dismissal here is treated similarly to a mistrial.) What's interesting is that if the state had not itself dismissed the count, but forced the trial court to rule on it, it might have brought itself within that rule. Indeed, as the appellate court noted, the decision to dismiss was mystifying: defects in an indictment have to be raised prior to trial, and the state could have opposed the motion on that basis alone. The state could have even sought to amend the indictment at that point, since that wouldn't have changed the name or identity of the offense.
In fact, the State's dismissal of the charges at the conclusion of its own case was really the only way that jeopardy was caused to attach. While this court cannot fathom what tactic might have been involved in the decision to dismiss, nonetheless, this is what the State did. For us to establish a rule that would permit the State to dismiss a charge at the conclusion of its own case, and then later reindict upon that charge, when simple correction of the defect was then available by amendment, or when the defense had obviously waived objection thereto, would be to destroy any concept of double jeopardy.
It's one thing to get your clock cleaned by a pro se defendant, another to clean your own clock.
RC 3109.04 permits a father to file an application to determine the paternity of a child, at which time he can demand a DNA test to resolve the issue. But what happens if the mother is married to someone else?
The issue that raises was confronted, but not resolved, by the 6th District last week in David P. v. Kim D. The plaintiff had filed a petition claiming that the child born to Kim a year before was his. Kim happened to be married at the time of the birth, and she and her husband filed a motion to dismiss the complaint on the grounds that the statute violated their right to marital privacy and to raise their child, and that it was unnecessarily overbroad.
The procedural history got a little funky at that point: a magistrate denied the motion and ordered genetic testing, the defendants objected to the magistrate's decision, the trial judge denied the objections, but stayed the order of testing so that the defendants could appeal. The appellate court, though, dismissed the appeal for lack of a final order, and everybody wound up back in the trial court. The magistrate again ordered testing, at which point the judge reversed himself and granted the motion to dismiss.
The constitutional issues were somewhat muddled, both in their presentation to the court and in the court's treatment of them. There are decisions which uphold a marital right to privacy, but their relevancy to this situation isn't readily apparent. The 3rd District did a much better job of analyzing that issue in this 1997 case, and noted that while there are decisions protecting a right to marry, to decide whether to have children, and so forth, none of them have come close to establishing a fundamental right to keep the marital unit intact, which is what is being argued here. (And what was argued there.)
Similarly, there are cases which establish a fundamental right to raise one's child, but the issue in this case is who's child is it? One certainly doesn't have a fundamental right to raise somebody else's child, and there are obvious problems with an argument that defendants' right to raise "their" child foreclosed the plaintiff's to determine whether it was their child to begin with.
The court's treatment was somewhat cavalier, too. Other than citing the 1997 decision, it really didn't address the merits of the constitutional issues. Ignoring the fact that the issues raised questions of fundamental rights under Federal constitutional law, which would have required a "strict scrutiny" analysis, it instead applied a rational basis test normally used for determining the constitutionality of the law under the Ohio constitution.
Finally, it determined that since under that test, the party claiming the law is unconstitutional must show it by "clear and convincing evidence," a remand to take evidence was appropriate, citing the Ohio Supreme Court decision on charter school funding. Again, that comparison isn't readily discernible: while the question of whether state support of charter schools violates the constitutional duty of the legislature to provide public education obviously involves a factual inquiry, it's not at all clear that such an inquiry is necessary to resolve the constitutional issue here.
As indicated above, there might not even be one. While having a third party claim that he's the father of a married couple's child is going to have serious ramifications for the couple, that's arguably a decision best left to the legislature. Whether other limitations, such as time, should be placed on the exercise of that claim is something that should perhaps be considered, keeping in mind that one of the affected parties is the child itself. It's one thing for the court to determine that a one-year-old's father is not the mother's husband. It's an entirely different thing to try to explain to a ten-year-old why she's going to be calling somebody else Daddy.
We hit the highlights from the Ohio Supreme Court on Friday, so let's get right to the courts of appeals.
Criminal. 6th District holds that nunc pro tunc entry imposing post-release controls is invalid because trial court did not comply with RC 2929.191 requirement of hearing to do that; imposition would have been impermissible anyway, since defendant had finished sentence, although he was still in prison on another crime... 10th District rules that exculpatory disclosure ten days prior to trial satisfies Brady; good discussion of timing requirement for disclosure of Brady material... 8th District affirms 8-year sentence for multiple pandering and importuning counts, holds that review of sentence is not for abuse of discretion, but only to determine whether sentence is contrary to law or evidence "clearly and convincingly" does not support it... 4th District holds that trial court's reference to having read PSI, which "presumably" contained financial information, sufficient to satisfy requirement that court consider defendant's ability to pay in ordering restitution... 12th District holds that defense counsel was ineffective for failing to make Rule 29 motion where state failed to prove venue...
Civil. 6th District rules that Texas decree on custody not entitled to full faith and credit, where child and father resided in Ohio since 1999... 9th District reverses plaintiff's verdict in med mal case, holds that trial court erred in refusing to allow defense to cross-examine plaintiff about prior misdemeanor theft conviction, rules that "unfair prejudice" not a proper consideration for admissiblity... 3rd District reverses grant of permanent custody to agency on grounds that trial court did not explain why it went against GAL's recommendation in doing so... 5th District holds that even where wife's motion to modify alimony is denied, judge can order husband to pay attorney fees where husband engages in "egregious acts"... 12th District reverses summary judgment in trampoline case, holds that dangers "double bounce" -- more than one person on trampoline at a time -- not sufficiently "open and obvious" so as to eliminate manufacturer's duty to warn...
You can call me Ronny, and you can call me Johnny, but you doesn't have to call me Emmanouel Hatzigeorgiou. From the 8th District's decision last week in Arrow Unif. Rental v. Emmanuel:
Although the original complaint was filed against "Emmanuel, aka Mike Hapcigeogiou, dba New Mom's Restaurant" the correct spelling of defendant-appellant's name is "Emmanouel Hatzigeorgiou," and he uses the nickname of "Mike." He is referred to herein as "appellant."
Me, I just would've sued "Mike" and been done with it.
The Ohio Supreme Court handed down two important criminal law decisions on Wednesday. The first was relatively straight-forward: in State v. Parker, the court held that when you're arrested on multiple charges arising out of the same incident, you're entitled to the triple-count provisions of the speedy trial statute on any time you spend in jail on any of the charges. In this case, some of the charges were misdemeanors, and some were felonies; the defendant was sentenced to do jail time on the misdemeanors, and the court held that time applied, 3 for 1, to the felonies. It's not going to arise often, but this was the first pro-defense speedy trial decision in probably two decades, so savor it.
The second case, involving uncounseled misdemeanor charges, is a bit more complicated and, as we say in the law biz, "requires more extensive treatment." Actually, they probably say that in the plastic surgery biz, too... Anyway, let's get to it.
The case was State v. Brooke, in which the defendant faced a felony DWI charge, based upon having three prior DWI convictions within the past six years. The law is that if a prior conviction was "uncounseled" -- that the defendant was not represented, and did not make a valid waiver of her right to counsel -- the prior conviction can't be used. If any of the priors was uncounseled, the offense is knocked down to a misdemeanor.
Brooke hadn't been represented by an attorney in the three prior cases, and the 11th District had held (decision here) that the state failed to show there was a valid waiver of counsel in any of them, because the record in each failed to demonstrate that there was a "knowing, intelligent, and voluntary waiver of counsel." The state had produced signed waivers of counsel in each case, but the court held this wasn't sufficient: there had to be something in the record beyond that. There was no transcript of the hearing on the 2nd conviction, and the questioning by the court in the other two was too minimal to make a satisfactory showing of waiver. Essentially, what the court held was that the record had to affirmatively demonstrate that the "defendant understood the nature of the charges, the possible defenses and the evidence the state would present."
I'd blogged about the case last year, and suggested that this was going to be too much for the Supreme Court to swallow. I was two-thirds right: it reversed the court of appeals on two of the priors, but affirmed it on the third. Unfortunately, the court's explanation of how it drew distinctions in the three cases isn't very clear or convincing.
The first and third prior convictions were in Chardon Municipal Court; in both cases, there was a transcript, and an identical waiver form, signed by Brooke. In the first case, the colloquy about the waiver of counsel consisted of the following:
The Court: You don't want an attorney here today? You don't want to get an attorney?
Ms. Brooke: I don't see much point in it.
The Court: Okay. Now -
Ms. Brooke: I did it. I'm not going to lie about that.
The Court: Before I accept your plea of guilty in this kind of a charge, I have to have one of your rights waived in writing, and that's the right to an attorney. So if you would sign that for me, please.
In the second case, this was the exchange:
The Court: * * * Okay, Betsy, you don't wish to have an attorney?
Ms. Brooke: No, sir.
The Court: Okay.
The court correctly noted that the second exchange lacked "a question asking whether she understands she has a right to counsel to begin with," but the statement in the first colloquy -- "I have to have one of your rights waived in writing, and that's the right to an attorney" -- seems to be a pretty poor substitute for what the court says is required:
In all cases where the right to counsel is waived, the court must make sufficient inquiry to determine whether defendant fully understands and intelligently relinquishes that right.
The court's treatment of the second conviction is also puzzling: in that case, there was no transcript at all (the recording had been erased), and the only evidence of waiver was the written form signed by Brooke. The court held that it could "presume" from the entry that "the court accurately explained to Brooke that she was waiving her right to counsel."
One other factor may have played a role here: the court found it "important to recognize" that the first two convictions (in which it found the waiver valid) were for a "petty offense" -- i.e., one that involved a potential jail sentence of six months or less -- while the last (in which it found the waiver invalid) was a "serious offense," since a conviction for a third DWI, while still a misdemeanor, is punishable by up to a year in prison. Again, though, the significance of this distinction isn't clear: the only difference between the two is that Criminal Rule 44(C) specifies that in serious offenses a waiver of counsel must be in writing, but that had been done in all three prior cases.
So what's it all mean? First, Brooke is helpful because it reaffirms prior case law that the burden is on the state to prove a valid waiver. The defendant has the burden of production, though, but that can be satisifed by the mere filing of an affidavit from the defendant stating that she wasn't represented in the prior case (and was sentenced to jail; as I mentioned a while back, there's no problem is using an uncounseled conviction that didn't result in a jail sentence). And Brooke is fairly clear that a silent record -- a simple notation on the file that the defendant waived counsel -- isn't going to cut it. At a minimum, there has to be either a transcript of the hearing, or a signed waiver, and both in the case of a serious offense.
In fact, it's tempting to suggest that the major impact of Brooke will be to reject the 11th District's interpretation that, in all misdemeanor cases, there has to be a record of a colloquy between court and defendant which shows that the waiver was knowing, intelligent, and voluntary. No other court had gone that far anyway, though. In fact, the major impact of Brooke might be that it doesn't have much: it leaves unaffected many defense-favorable decisions in this area, such as the ones I discussed here. In other words, the best reaction to Brooke by the criminal defense bar might be, like so many other Supreme Court decisions, both state and federal, that it could easily have been worse.
Every now and then you run across a case that would serve as a good bar exam question, and the 8th District's decision last week in State v. Dunbar fits the bill. The facts weren't in dispute: Dunbar had used his girlfriend as a punching (and kicking) bag, in front of the kids no less, then wouldn't let her leave the house so that other people couldn't see what he'd done. He wound up pleading guilty to domestic violence in municipal court, did six months there, and then was indicted for domestic violence and three counts of abduction by the county. He was offered a plea to one count of abduction, with an agreed sentence of probation; he nixed the deal the first time, then accepted it three weeks after that. When he showed up for sentencing a month later, the court gave him two years in prison.
Where do we start? First, while the plea to the misdemeanor domestic violence would obviously bar a prosecution on its felony counterpart, does it also prohibit the abduction charge? There is case law -- primarily the Ohio Supreme Court's decision in State v. Carpenter -- to the effect that once a person enters a plea, it bars prosecution of related charges that the state knew about and could have brought, on the due process grounds that the defendant should be able to "reasonably anticipate" that his plea brought an end to his troubles. The 8th District cited the later Supreme Court decision in State v. Zuma, for the proposition that the defendant's reliance on that anticipation isn't warranted when the courts are different (municipal v. state).
And, of course, the abduction charge isn't barred by the plea to domestic violence on double jeopardy grounds, either, since the two offenses have different elements. The defendant had also argued that further prosecution was barred by "collateral estoppel," the doctrine that once a case is tried, the facts necessary for its determination can't be relitigated. (The leading Supreme Court case on that is here.) That's usually only applicable where there's a an acquittal, though. Even if Dunbar had been acquitted of the domestic violence charge in muni court, whether that would have precluded a conviction for abduction was problematic; the "issue preclusion" necessary for collateral estoppel runs into the same problem of different elements as the double jeopardy contention. The fact that he pled guilty to the lesser charge, though, foreclosed the argument of collateral estoppel.
But we're still not done: the question then becomes whether the judge could send him to prison when the plea agreement was for probation. The law is that a judge doesn't have to accept an agreed prison sentence, but if she doesn't, she has to make it clear that she's not going to do that, and give the defendant a chance to withdraw the plea. The court actually spent more time than it needed to on this issue: it recited the transcript fully, and there's nothing to indicate that the trial judge ever gave a hint of not going along with the recommended sentence, so long as defendant didn't have any contact with the victim. The court concluded that the trial court abused its discretion in sentencing him to two years in prison without giving him a chance to vacate the plea.
Wait! There's more! If you're one of the first 100 people to read this opinion, we'll throw in a discussion of speedy trial, too! And, in this case, it's pretty helpful: the question was whether time was tolled after the defendant failed to show up for his arraignment. The reason he failed to show up, it turns out, was because he was in the Workhouse serving the six-month sentence on the misdemeanor domestic violence conviction. The court held that the state should have known this, and served him at the Workhouse, instead of sending the subpoena to the address where the victim lived, especially since there was a no-contact order with the victim.
This is in keeping with prior 8th District decisions holding that the state has an obligation to use reasonable efforts to determine if the defendant is incarcerated in the state, and, if so, to serve him with the indictment there; four other districts have held that there is no such obligation, and only by complying with RC 2941.401 can the defendant preserve his speedy trial rights. As it turns out, the state still brought the defendant to trial within the allotted time, since the defendant wasn't entitled to the triple-count provisions for the six months he spent in jail -- that wasn't on the "pending charge."
One more thing. This was an opinion by Judge Mary Jane Boyle, who just took the bench in February. She also wrote the 24-page opus on class actions that I mentioned in the case update on Monday. Welcome to the court, judge.
Taking the spotlight in the nine cases up for argument in the Ohio Supreme Court this week is J.F. v. D.B., which presents a factual situation that could serve as the script for a movie on the Lifetime channel. Or the Science Fiction channel, for that matter. Here's a quick recap: James Flynn signs a surrogacy contract with Mr. and Mrs. Bimber, paying them $20,000 so that Mrs. Bimber can be the surrogate mother of Flynn's child. The eggs are harvested from another woman, impregnated with Flynn's sperm, then implanted in Mrs. Bimber. Turns out she has triplets, and decides to keep them. This arrangement spawns -- pun fully intended -- no less than four separate legal actions.
What's worse, while Aldous Huxley might have contemplated such a scenario, he probably wouldn't have used conflict of laws as a plot device: Flynn lives in Ohio, and the Bimbers live in Pennsylvania. Flynn first sought relief in Pennsylvania, but the result was that the court there held the contract to be void, then named Flynn the legal father because the contract designated him as the father, and named Mrs. Bimber the legal mother because the contract did not designate a mother. No, I'm not making that up; as the Ohio court delicately opined, "deeming a contract void but then relying on that contract in the ensuing analysis is legally questionable." The other result of the Pennsylvania decision was that not only was Flynn out the twenty grand he'd paid the Bimbers, but he was also obligated to pay child support for the kids the Bimbers decided to keep.
The final case in this saga is the 9th District decision being argued today, which held that the contract was enforceable, that the Bimbers breached it, thus entitling Flynn to recover the money he'd given them, and that the indemnity provision in the contract required the Bimbers to reimburse Flynn for any money he paid in child support. You can catch the argument on the Court's video. Frankly, I think everyone would have been better served if this had been submitted to Judge Judy. Talk about must-see TV...
The other cases are a bit more mundane. There's one involving the Public Utilities Commission, but as I've hinted before, if you ever see a discussion here about PUCO cases, call the police, because it means somebody stole my identity and is posting on this blog. Perhaps the most interesting of the rest of the lot is Leininger v. Pioneer Nat'l Latex, in which the trial court granted summary judgment to the defendant in an age discrimination case because she hadn't filed suit within the 180 days provided by Ohio's statute, 4112.01(A). The appellate court reversed, holding that the plaintiff's discharge violated public policy, and thus was a common law tort with a two-year statute of limitations. Why was it a violation of public policy? Because 4112.01(A) says that you can't discriminate on the basis of age. I think there's some problems in bootstrapping a statutory cause of action into a common-law one so as to avoid the limitations provisions of the former, and I'd be willing to bet that the Supreme Court agrees.
Speaking of somewhat befuddling results, one was provided by the 8th District's decision last week in State v. Dyer, a child molestation case in which the court, in a bench trial, permitted the social worker to testify as to her interview with the 9-year-old victim. The defendant had argued that this was a Crawford violation (if you don't know what that means, read this), but there was one big problem with this argument, as the appellate court pointed out: Crawford only bars testimonial statements where the declarant doesn't testify at trial, and here the child did testify, affording the defendant his full right of confrontation and cross-examination.
Nonetheless, the court proceeded to determine whether the social worker's testimony was prohibited by Crawford, and tracked the Ohio Supreme Court's decision in State v. Stahl, which held 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." I've discussed the problem with Stahl before, in the post cited above, and that's on full display in the court's conclusion here:
We conclude that, under the circumstances of the instant case, B.D.'s statements to McHugh are nontestimonial. Our review of the record reveals nothing to indicate that B.D., or a typical child of her age, would have reasonably believed that her statements would be used later for trial.
My guess is that the record would reveal nothing to indicate that B.D., or a typical child of her age, would have had any concept what a trial was. I feel relatively comfortable in surmising that of the many thoughts which ran through B.D.'s head at the time she talked to the social worker, one of them was not, "Gee, I wonder whether what I say can be used at trial."
The topper was that despite the nature of the crime and the fact that the cops found 77 pictures of child porn on defendant's computer, the court reversed the defendant's sexual predator designation and remanded that for a new hearing, just two weeks after another panel upheld a predator designation in what was essentially a date rape case. Why? Because the trial court didn't say the magic words: although the judge opined that "with the number of counts in front of me involving children, obscenity involving children, as well as physical crimes against a related child in this case, that defendant should be classified as a sexual predator," the judge didn't specifically discuss whether the defendant was likely to reoffend.
Once again, form beats substance.
UPDATE: A shoutout to one of the other lawyers in my office, Toni Richmond, who gently pointed out that, probably due to my declining mental state, I interchanged "Kimbers" with "Bimbers" in portion of this post about the Supreme Court case on surrogate mothers. I've made the necessary changes. I think.
The situation in the 8th District case last week of Rolf & Golfman LPA v. Nour Management was pretty straightforward: the plaintiff law firm had represented the defendant in a business deal, hadn't gotten paid, and sued them for just north of twenty grand. The defendant's lawyer filed a motion to withdraw as counsel in January of 2006. A month later, on February 16, the plaintiff filed a motion for summary judgment; on that same date, the court granted the defendant lawyer's motion to withdraw, and told defendant that he'd have to get another lawyer to reply to the plaintiff's motion. Although a new lawyer contacted the plaintiffs, he never filed a notice of appearance or responded to the motion for summary judgment, which the granted on March 28, a little over five weeks after it had been filed.
The defendant's 1st assignment of error was that
The trial court erred in entering the unopposed motion for summary judgment in favor of the plaintiff immediately after allowing the defendant-appellant's legal counsel to withdraw from representation.
Judge Calabrese bought it, but the other two judges, Celebrezze and Sweeney, didn't, noting that an abuse of discretion involves some legal error, and the judge really hadn't made one in ruling on the motion more than five weeks after it was filed.
But how about letting the defendant's lawyer withdraw in the first place? One of the requirements for withdrawal is that "the lawyer has taken reasonable steps to avoid foreseeable prejudice to the rights of his or her client," and it's hard to see how leaving him facing a summary judgment motion isn't a "foreseeable prejudice."
I went back and checked the court's docket, though, and it reflects that the motion to withdraw was unopposed, so that would be a tough argument to make. And although the basis of the motion isn't specified in the court's decision, it probably wouldn't be unwarranted, in light of the underlying action, to believe that it might have something to do with someone not getting paid.
And if there's a moral to the story, that's probably it: while there are many places where you may get a sympathetic reaction to the explanation of why you stiffed your lawyer, the courts aren't one of them.
No big decisions from the Ohio Supreme Court, other than some peremptory affirmances based on its decision the week before in State v. Buehler that courts do not need to order DNA tests of inmates, pursuant to newly-enacted RC 2937.74, if the test would not be outcome-determinative. Nothing new in the US Supreme Court, either. So, on to the courts of appeals:
Criminal. In case involving controlled delivery of UPS package containing drugs, 1st District holds that evidence insufficient to convict because defendant never took package, but says he could be convicted of attempted possession... 10th District reverses grant of expungement of 1979 drug trafficking conviction in which defendant received 3-year mandatory sentence because, even though crime could have been expunged at that time, under current law expungement not allowed for crimes involves mandatory sentencing... 8th District holds that failure to give accomplice instruction mandated by law is plain error... 12th District finds that judge's comments in juvenile delinquency proceeding that juvenile's failure to testify was "critical" to judge's decision was improper consideration of 5th Amendment right and "structural error" requiring reversal...
Civil. 2nd District gives yet another reminder that failure to object to magistrate's decision waives right to appeal from trial court's judgment adopting decision... 6th District tosses out Toledo's ban on weapons in its municipal park's, says newly-enacted RC 9.68, effective last month, allows concealed-carry permit-holders to carry weapons in parks... 8th District affirms trial court's holding that class action re telemarketing scheme should be limited to Ohio citizens because of differences in state law; good review of law on class actions... 12th District holds that claims for negligence, strict liability, and breach of warranty were outside of contract, thus not within scope of arbitration clause...
Now this is doing justice: in State v. Irwin, the defendant had been charged with menacing as a result of an altercation at a city council meeting. He represented himself, and sent a letter to the judge stating that he'd gotten had lie detector test taken by a certain company, but requesting a continuance so he could get another test done. The judge denied the continuance, but told him to bring in the results anyway. At trial, of course, the tests were excluded because the prosecution wouldn't stipulate to them. The defendant was convicted, and on appeal complained that if he'd known that he wouldn't have spent the $350 on the test. The appellate court agreed that the trial judge's advice to bring in the results was confusing, so it reversed the fine of $250 and let the rest of the penalty stand.
A couple of weeks back, I discussed the imbroglio regarding the eight US District attorneys fired by the Justice Department last year. The conflicting explanations for the firings offered by Attorney General Alberto Gonzalez have led even Republican stalwarts like Newt Gingrich to suggest it should be bedtime for Gonzo. Gonzalez has insisted that he's not resigning, although he's sounding more and more, in Hunter Thompson's memorable phrase, like a farmer with terminal cancer trying to borrow money on next year's crop.
The rationale initially offered by the DOJ, that the firings were performance-related, took another hit recently. David Iglesias, the USDA for New Mexico, was allegedly canned because of his absence from the office; he was gone for about 45 days a year, due to his obligations as a member of the Navy Reserve. As you might guess, there's a law that prohibits job discrimination against members of the military, and now the Office of Special Counsel is investigating to determine whether Iglesias' firing violated that law. What's worse, it turns out that William Mercer, the USDA for Montana, hasn't been there in two years because he's serving as an aide to Gonzalez in Washington, DC; the chief judge for the US District Court in Montana has written the Justice Department asking for Mercer to be replaced, because "a lack of leadership" in the Montana office and created "untoward difficulties for the court" and for career prosecutors.
Of course, Gonzalez isn't the only lawyer in law enforcement who's feeling the heat. On Wednesday, the North Carolina attorney general announced he'd completed his investigation into the racially-charged rape allegations made against members of the Duke Lacrosse team last year. Not only did he drop the charges, he declared that Durham District Attorney Harold Nifong, who'd pursued the case so relentlessly, was a "rogue" prosecutor, and that the defendants were innocent and the "victims of a tragic rush to accuse." He even went so far as to suggest that a criminal investigation of Nifong might be appropriate.
And the three Duke students weren't the only ones to exult in exoneration during the past week. Last Thursday, the US 7th Circuit Court of Appeals threw out the fraud conviction of Georgia Thompson, a Wisconsin government worker, finding that the evidence was insufficient to convict. I won't bore you with the details of the case, which you can find here, but the best indication of the flimsiness of the government's case was that the three judges voted to order Thompson released within a couple hours after hearing oral argument on the case, without waiting to write an opinion.
While these three stories might seem unrelated, they're not. The defense offered by the administration apologists in the USDA firings is that the district attorneys are political appointees who serve at the president's pleasure, and can be fired for any reason or no reason. That's true to an extent, but it ignores the potential for abuse in mixing politics and justice. Iglesias believes he was fired because he refused to indict local Democrats on corruption charges just prior to the election last year; he was contacted by a Republican Senator and a Republican Congresswoman to find out if he was going to be pursuing those charges, and they expressed regret that he wasn't. Thompson's conviction played a major role last year in Wisconsin Democratic Jim Doyle's campaign for re-election, with Republicans running major ads attempting to demonstrate that the conviction proved Doyle to be corrupt. There's suspicion that Nifong's prosecution of the Duke students was motivated by a desire to enhance his prospects in an upcoming primary election, in which he faced a black opponent.
There are a lot of crappy things that can happen to you in life, and I've always believed that being charged with a serious crime is in the top five. Those who've never had any experience in the criminal justice system have absolutely no idea of the awesome power that a United States District Attorney, or even a County Prosecutor, has at his disposal, and can bring to bear against a solitary individual. Justice finally caught up to Georgia Thompson, but not before she'd spent $250,000 in her defense, and four months in prison. One can only imagine what justice cost the Duke students and their families.
One of the more interesting emails in the treasure trove of Justice memos about the reasons for the firing of the USDA's is one noting a desire to replace them with "loyal Bushies." I don't know whether the USDA who prosecuted Georgia Thompson fell into that category, but the possibility that that happened, and the consequences to Georgia Thompson, should strike a cautionary note to those who believe that the selection of a USDA should not involve anything other than political considerations.
There are few things more frustrating in law than to file a motion to suppress, do all the legal research and prep, then go through a three-hour hearing, only to have the judge say, "motion denied," without giving any explanation of why he ruled the way he did. Well, be frustrated; as indicated by the 8th District's decision last week in State v. Stewart, that can work to your advantage.
Stewart involved one of those prosecutorial rarities, the narcotics bust. The police were conducting surveillance at one of the city's many drug marts, and spied the defendant take something from his mouth, count it, then put it back in. The cop then saw a Ford Ranger stopped in traffic; the defendant approached the Ranger, got in, and the vehicle drove off. The officer who'd seen all this radioed to a zone car and told them that the Ranger had committed a traffic violation -- the area was a no-stopping zone -- and that the passenger was suspected of drug activity. The police pulled the vehicle over and, as the defendant was exiting it, one of the officers spied a bag of cocaine in "plain view" in the middle of the floor of the vehicle.
The trial court denied the motion to suppress, finding that the police officers had a reasonable suspicion to stop the Ranger. The court of appeals found to the contrary, citing a number of earlier cases to support its position that observing the defendant take something from his mouth, count it, and then put it back in wasn't sufficient to create a reasonable suspicion that he was engaged in drug trafficking.
Now, if you're reading along -- and, quite obviously, you are -- you're probably thinking, "Hey, what happened to the traffic stop?" As we all know, a traffic violation, no matter how obscure, is a sufficient basis for a vehicular stop, even if it is for an ulterior purpose, and "stopping in a no-stopping zone" is no more a bullshit violation than getting pulled over for not using your turn signal on an exit ramp or having tinted windows or a loud muffler, or all the other petty transgressions of the traffic code that now serve as the launch point for the assault on the 4th Amendment.
Well, it turns out that the state forgot to argue the traffic violation in the lower court. The court of appeals said, thank you, but you're not going to do it here, either:
In denying appellant's motion to suppress, the trial court only made the factual determinations necessary for rendering its decision as to reasonable suspicion and did not make any factual determinations or judge credibility as to the traffic stop, which appellant contested. Therefore, we cannot address the state's argument that the detectives had probable cause to make a traffic stop because an appellate court is not a fact-finding court, and thus, is limited by the findings of the trial court contained in the record.
That's an interesting conclusion in light of a case from last year, State v. Ogletree, which offered a similar legal situation. The defendant there was approached and questioned by the police regarding drug activity, at which point they observed him "swishing" a piece of crack cocaine in his mouth. The state offered two theories in support of the search: stop and frisk, and that the encounter was a consensual one up until the point where the officers observed the piece of crack. The trial court rejected the first argument, but made no findings on the second. The court of appeals agreed that there was no reasonable suspicion for a stop, but noting that Criminal Rule 12(F) requires that "where factual issues are involved in determining a motion, the court shall state its essential findings on the record," it concluded that "this [case] becomes a classic circumstance where findings of fact are crucial to the resolution of the issue," and reversed and remanded the case for further factual determinations by the trial court.
So why didn't the Stewart court do the same thing: remand back to the trial court for factual findings on the traffic violation issue? I've suggested before that the 8th District seems to developing a more critical attitude toward low-end drug busts and accordingly is more willing to find 4th Amendment violations in those cases, and that may have played a part in Stewart.
And there's another thing that may have factored into the outcome in Ogletree. The appellate court's opinion notes that "the court did not directly address the state's [consensual encounter] theory, but very obviously rejected it by remarking that one of the judges of this court would 'be happy to hear that argument.'" Knowing the trial judge, I'm fairly confident that she was referring to Michael Corrigan, certainly the most conservative of the judges on the appellate bench at that time.
Guess who wound up writing the opinion in Ogletree?
Back in September, I regaled you with a teen romance story, ultra-modern variety. The short version is that our client (I handled the appeal, not the trial), a 16-year-old boy, had taken his 15-year-old girlfriend into a bathroom stall at school and had her perform oral sex on him. The festivities had been interrupted by someone coming into the bathroom; when he left, the two resumed. The school got wind of it, and the young man found himself charged with rape and kidnapping. He argued consent at the trial in Juvenile Court, buttressed by the testimony of the girl's friends and his own probation officer, who testified that the she'd been on the phone when the alleged victim called him and apologized for claiming that he'd forced her into the act.
Two months later, the trial judge handed down a decision which, somewhat bewilderingly, determined that there were actually two sexual episodes -- the first before the interloper came into the bathroom, and the second after he left -- and that while the first episode was consensual, the second was not. What was even more bizarre, the court convicted the defendant of attempted rape and attempted kidnapping.
As I chronicled back in September, the court of appeals had little trouble reversing that; given that penetration was admitted, there was no "attempt," and either the defendant was guilty of rape and kidnapping or he wasn't guilty of anything, depending upon whether there was consent. After determining that the trial court "abused its discretion" in amending the original charges, it stated, "we reverse and remand this matter to the trial court for a new hearing."
A new hearing on what?
See, this is where things get funky. There's a substantial body of case law, starting with a 1957 Supreme Court case, Green v. US, 355 US 184, which holds that a conviction of a lesser offense is an automatic acquittal of the greater offense. In Green, the defendant had been charged with first degree murder, found guilty of second degree murder, then had his conviction reversed; at his second trial, he was convicted of first degree murder. The Supreme Court said that was a no-no, and violated the double jeopardy clause: by convicting him of second degree murder, the jury had implicitly acquitted him of the greater offense, so he couldn't be tried for that again.
And there's Ohio case law to the same effect, notably, State v. Edmundson. In that case, the defendant had been charged with welfare fraud of over $5,000, a 4th degree felony. The trial court, however, convicted her of only a 5th degree felony, after deducting the amounts that she would have received if she'd been truthful. The court of appeals reversed that, and the Supreme Court affirmed, both courts concluding that it's the total amount you take, not the amount you wrongfully take, that determines what degree of crime you've committed.
But here's the interesting thing. The court of appeals had first reversed and remanded the case for a new hearing, but then issued another journal entry affirming the conviction of the 5th degree felony; as the Supreme Court noted,
The court of appeals' correction of its judgment was necessary insofar as reversal and remand would have been a futile exercise; double-jeopardy principles barred the state from pursuing the grand theft charges because the trial court's finding of guilt on the lesser-included offenses operated as an acquittal of the greater offenses.
In the main brief in our case, we argued that the only appropriate action was discharging the defendant: he couldn't be tried for rape and kidnapping because of double jeopardy, and the court had just concluded that there was no basis for convicting him of an attempt to commit those crimes. When the court reversed the delinquency finding and remanded the case for "a new hearing," we even filed a motion for reconsideration. The appellate court didn't buy it, not only denying our motion, but stating,
Further, we clarify our journal entry and opinion to specify that this matter is remanded to the trial court for a new delinquency hearing. And stop bugging us about this.
Okay, they didn't include that last sentence, but they were probably tempted. We appealed to the Supreme Court, and last week they told us to get lost, too.
So now what? We go back to the juvenile court, which, given the court of appeals opinion, certainly can't convict our client of attempted rape and kidnapping, barring blatant perjury by everybody involved. It can't constitutionally convict our client of rape and kidnapping, either. What could happen is that we file a motion of once in jeopardy on the main crimes, the judge overrules it and finds our client guilty of either or both, and we wind up in the court of appeals again, arguing that that's impermissible, which is an issue that should have been decided the first time around.
God, I love the law.
I know it says in the "About" tab that caveat emptor applies here, and that there's no guarantee that anything I say is right. Still, the tagline reads, "Commentary and analysis of Ohio law," not "My wild-assed guesses about what the law means." For what it's worth, I do place a good bit of importance on my credibility here, and I usually take what I believe are the appropriate steps to make sure that whatever I post here is correct.
So I got somewhat bummed when I did the Case Update over the weekend and came across this case, a 6th District decision dealing with a major drug offender. As you may remember, repeat violent offenders and major drug offenders were given special treatment by Ohio law: if the jury returned a verdict including that specification, a mandatory ten-year sentence was imposed, and the court could add an additional one to ten years if it made certain other findings. In the 6th District case, the defendant had pled out to the MDO spec, and judge had given him the ten-year mandatory and tossed two years on top of that for good measure. The appellate court found that was permissible.
So what's the problem? Well, back in December I'd written a post claiming that the additional one-to-ten year sentences for MDO and RVO specs were unconstitutional. I thought the 6th District had gotten it wrong, but they referred to the Supreme Court's decision in State v. Foster last year, and quoted language which seemed to support their view. (As if life isn't complicated enough, the 6th District decision is also State v. Foster, albeit involving a different defendant.) Specifically, the Supreme Court had found that the additional 1-10 year sentence required "judicial factfinding," as did the provisions requiring findings for more-than-minimum, consecutive, or maximum sentences. This was a no-no after the US Supreme Court's decision in Blakely v. Washington, but the Ohio Seven determined that the statute could be saved if the offending portions were severed, and, as the 6th District noted last week, quoting Foster, "After the severance, judicial fact-finding is not required before imposition of additional penalties for repeat-violent-offender and major-drug-offender specifications." So, I guess I was wrong.
Or not. Because a few months after Foster, the Supreme Court decided State v. Chandler, in which it had this to say about the MDO spec:
As the statute now stands, a major drug offender still faces the mandatory maximum ten-year sentence that the judge must impose and may not reduce. Only the add-on that had required judicial fact-finding has been severed. [My emphasis.]
So what exactly did the Supreme Court do? Did it sever the entire add-on sentence provision, or just the part of that provision which required judicial fact-finding? The Court in Chandler said, "We severed R.C. 2929.14(D)(3)(b) to remedy the constitutional violation," and that section provided:
(b) The court imposing a prison term on an offender under division (D)(3)(a) of this section may impose an additional prison term of one, two, three, four, five, six, seven, eight, nine, or ten years, if the court, with respect to the term imposed under division (D)(3)(a) of this section and, if applicable, divisions (D)(1) and (2) of this section, makes both of the findings set forth in divisions (D)(2)(b)(i) and (ii) of this section.
In short, the entire section allowing the additional prison term was severed. This is logical: the main issue of severability is whether the statute still makes sense after the offending portions have been removed, and it's hard to see how that happens when you have a statute that says, "The judge can give you 1-10 years if it finds X, Y, and Z," and you take out the part about finding X, Y, and Z.
So which is correct? While Chandler's view is the logical one, it's dicta. What's worse, as I also pointed out in December, there's now a new RVO and MDO statute: last August, they were amended to provide virtually the identical judicial fact-finding that had been declared unconsitutional in Foster.
I also did some more checking, and there haven't been any cases which have attempted to reconcile the language in Foster and Chandler. It's somewhat doubtful that the 6th District even considered the latter case; appellate counsel had filed an Anders brief seeking to withdraw, and it appears that the defendant's pro se brief is all the court had to consider.
Bottom line? I think I was right in saying that the add-ons for MDO and RVO specs are out the window. If you've got a case involving them, press the issue. Eventually, this is one the Supreme Court will have to clear up.
My faithful companion Lexis advises me that the Ohio courts have decided some 340 cases since I last did a courts update two weeks ago. Fortunately, about a hundred of them are "unpublished" decisions of the Supreme Court, where they simply announce that they're not going to hear a particular appeal. Happened to one of my cases, which we'll talk about next week.
Meanwhile, on to the courts of appeals:
Criminal. 3rd District holds that defendant can be convicted of violating protective order, even if petitioner invited him onto property... Fact that witnesses were under influence of drugs -- presumably when they observed crime, not when they testified -- does not render them incompetent under Evid.R. 601 and 602, 2nd District holds.... 7th District rules that trial judge violated defendant's right to allocution by immediately proceeding to sentencing after jury verdict, vacates sentence... 3rd District holds it was error to admit preliminary hearing transcript, one subpoena not "reasonable effort" to procure her appearance...
Civil. 8th District holds that insurance company cannot proceed against tortfeasor on subrogation claim if tortfeasor had no knowledge of insurance payments to plaintiff... Termination of shared parenting agreement does not require showing of changed circumstances, rules 12th District... 10th District rules that mortgage company waived right to insist on arbitration for lendee's claims by first filing foreclosure... 1st District holds that savings statute not available where plaintiff never demanded or attempted service of first complaint... Pallet in aisle open and obvious hazard, says 10th District in affirming summary judgment for store... Trial judge's ex parte communications with jury presumed substantive and prejudicial in absence of contrary evidence, warranting new trial, holds 9th District...
The joys of being a cop. The facts from State v. Donkers, in which the 11th District reversed the defendant's conviction for not having her baby in child restraints: after being followed by the officer, with his lights and sirens going, for three miles,
appellant exited the turnpike and entered a line at a toll booth. The trooper quickly approached the vehicle. He ordered appellant to turn off the vehicle and hand over her keys, which she did only after multiple requests. She voluntarily explained that she had been breastfeeding her six-month old, which she urged was lawful based upon legal research she performed before making the trip. . . At first, appellant would not display identification or reveal her name. She cited the trooper to United States Supreme Court case law dealing with lack of police authority to demand identification where no criminal investigation was occurring. . . Finally, she handed over an apparently homemade identification card/affidavit displaying her picture, her name and a Pennsylvania address.
The defendant represented herself in both the trial and appellate courts. There's a surprise, huh?
Today's man-bites-dog story comes from Delaware, where the state House, in a fit of rationality, has voted to repeal the minimum-mandatory sentences for drug offenses. The pros and cons of doing that have been endlessly rehashed, and they're mostly re-rehashed in the article, but what caught my eye is one contention that I haven't seen raised in support of mandatory minimums: According to Dover Police Chief Jeffrey Horvath, "Mandatory sentencing makes it fair for everyone who can't afford a (high-priced) attorney." There's certainly an argument to be made that anything which minimizes the disparity in result that affluence plays in the justice system is a good thing, but I've never heard the argument couched in quite this fashion. Plus, I don't think people doing time for drug offenses for no other reason than that the law requires a judge to give them time are going to draw much solace from the fact that their more well-heeled compatriots are suffering the same fate.
The other sentencing news is with regard to the maximum penalty that the law provides. As Doug Berman at the Sentencing Law & Policy blog notes, Texas is about the only state in the Union which is still executing people: it executed Roy Pippen the day that Berman's post appeared, bringing its total for the year to 11. The total for the US so far in 2007 is 12, and only three other people have been executed anywhere else in the United States in the past five months.
Texas' achievement in this regard is by no means recent. Since capital punishment was reinstated by Furman in 1976, there have been 1,069 executions in the United States. Here's a breakdown by state: Texas has been responsible for 390, or over one-third, of those, almost 300 more than the next closest state. During the eight years he was governor of the state, George W. Bush signed off on 152 of those executions.
Bush protested during the 2000 debates that he was not "proud" of Texas' record on that score, and had contended earlier that whether to go ahead with an execution was one of the most "profound" decisions he had to make as a governor, and described his procedure for doing so as one where ''I get the facts, weigh them thoughtfully and carefully, and decide." That description took a hit when the New York Times obtained a copy of his calendar for the years in question and discovered that he'd spent an average of 15 minutes reviewing each case before reaching his determination, which was, in all but one case, to go ahead with the execution.
And then back in 2003, journalist Alan Berlow obtained copies of 62 of the clemency memos submitted to Bush by the Texas attorney general, and wrote an article about it for the Atlantic Monthly. That article (which you can read here, and a summary of it here) showed that the summaries, which were normally given to Bush the day of the execution, were cursory at best in describing the case, and concentrated almost exclusively on issues of guilt or innocence, rather than questions of mitigation which would be the more logical consideration for clemency. For example, when Bush approved the death sentence for Terry Washington, the memo advised him of the details of the crime -- the victim had been stabbed 85 times -- but didn't note that Washington was so severely retarded that he had the communication skills of a 7-year-old, and that his counsel, although aware of substantial mitigating evidence, had never presented it at trial, nor even asked the court to appoint a mental health expert to examine Washington.
The attorney general who prepared those 62 memos was Alberto Gonzalez.
So it's more than a little interesting that, as Prof. Berman also notes, there have been so few Federal executions during the Bush presidency, and under the Department of Justice's recent stewardship by Attorney General Alberto GonzelezL only one execution in the past six years, and none in the past four, and with reports that the next one, in April, has been stayed.
The police are in the process of executing a search warrant for drug activity on a local bar. While doing so, they see people traipsing from the bar to a Chevy Lumina in the parking lot, and then back again. They approach the car, where the driver is rather conspicuously smoking an outsized joint. That's only a minor misdemeanor in Ohio, which means a person can't be arrested as long as they can provide identification. The police tell him they're going to write him a citation, and ask him for his identification. Turns out he doesn't have any, so they arrest him, remove him from the car, and promptly find a bag containing 29 vials of marijuana. (At least, that's what the opinion says. I didn't know marijuana came in vials. The march of science continues...)
The prosecutors must have been nonplussed when the trial court threw out the search on a motion to suppress, and their bewilderment could only have deepened when the 8th District unanimously affirmed that decision last week in State v. Green. The court primarily relied on a 6th District decision from 1997, State v. Satterwhite, which held that even though the defendant didn't have any identification on him, because the police could have properly identified the defendant from his social security number, they lacked a basis for arresting him for a minor misdemeanor.
The facts in Satterwhite are a good bit more favorable to the defendant than the ones in Green. In the former case, the defendant was jaywalking; when the police noticed he had something clenched in his hand, they approached him, asked him for identification, and promptly arrested him when he said he didn't have any. As soon as they got him into the police vehicle, they asked for his name and social security number, and promptly identified him from that. The opinion in Green doesn't indicate exactly when the police actually determined his identity; what's more, busting a guy for jaywalking seems to have more of the hallmarks of a roust than busting somebody who's openly smoking marijuana in a car.
What makes Satterwhite and especially Green so helpful to defendants is that it clearly places the onus on the police to determine identity, and that has far more reach than just in cases of minor misdemeanors. As I discussed a couple months back, although there's a prevalent belief among police officers that they can arrest a motorist if he doesn't have his drivers license on him, that's not true: the 8th District, and others, have ruled on numerous occasions that the law requires that a person either have his license or be able to supply proof of identity.
The question, though, is how far the police have to go to determine identity. Just last year, in State v. Spraggins, the 8th District held in dicta that the police don't have an affirmative duty to ask for a person's social security number. Green seems to clearly hold that they do, at least in the context of an arrest for a minor misdemeanor, and it's difficult to see how the same logic wouldn't apply to an arrest for not having your drivers license on you.
I didn't do anything on civil stuff last week, so a shout-out to one of my peeps, a lawyer in Middleburg Heights who dropped me an email and turned me on to an interesting decision in a probate court case. Now, as far as I'm concerned, the words "interesting" and "probate court case" are as likely to appear in the same sentence as the words "Paris Hilton" and "genius-level IQ." Still, the decision last year by the 11th District in In Re Estate of Ivanchak should pique our interest because it's about something that's near and dear to our hearts: us.
Partnerships between us, to be more precise. The case tracks the careers of three attorneys: John Fowler, Theodore Ivanchak, and his son, Terry. The three had engaged in various business relationships, beginning with a law firm composed of Ivanchak fils and pere, with Fowler as a salaried employee. This then became Ivanchak, Ivanchak & Fowler, with an agreement for weekly pay plus a sharing of the profits among the three. Subsequently, Terry left, and the firm became Ivanchak & Fowler, with a slightly different agreement regarding pay and the sharing of profits, Fowler's percentage being elevated from 20% to 40%.
Then Theodore Ivanchak died, and his son Terry, as executor of the estate, filed a motion for an accounting of the partnership's assets. As they say in the railroad biz, this is where the train went off the track. The probate court appointed appraisers to evaluate the assets, the parties engaged in stipulations about how the various files should be divided, and the court conducted a hearing, at the conclusion of which it decided that there'd never been a partnership in the first place.
Fowler appealed, and the 11th District held that while whether a partnership existed was a "close call," it wouldn't engage in "Monday-morning quarterbacking," and would instead give due deference to the lower court's factual findings:
The probate court's conclusion that the parties did not intend to form a partnership rests on the findings that there was no written partnership agreement, the firm did not maintain an IOLTA account, Theodore used firm funds to pay for certain personal expenses, the firm did not file partnership tax returns, and the accountant, Smaltz, did not treat the firm as a partnership.
Well, that latter point wasn't quite right. The appellate court conceded that "there is no direct evidence that Smaltz did not treat the firm as a partnership in the record"; a more accurate way of stating this would be that there was direct evidence that the account did treat the firm as a partnership, as the dissent points out:
there was a memorandum from Smaltz [the accountant] to Theodore admitted at the hearing in which Smaltz requests an appointment "to discuss the books for the new partnership." Far from concluding that Ivanchak, Ivanchak & Fowler was not a partnership, Smaltz treated the entity as a partnership.
The dissent also does a pretty good job of demolishing the remaining pillars of the lower court's decision: there's no requirement that a partnership agreement be in writing, that it have an IOLTA account, or that it pay taxes (the individuals do, not the partnership), nor is there any prohibition on using firm funds for personal expenses: on the contrary, this simply shows a co-ownership of the firm's assets, which is an indication of a partnership.
So what are we to make of all this? Did the court of appeals really mean to suggest that partnership agreements based on nothing more than a verbal agreement and a handshake -- and I've been in two of those -- are now invalid?
My Middleburg Heights correspondent suggests darkly that the true reason for the court's decision might be found in the first sentence of the seventh paragraph in the court's decision:
In January 2000, Terry left the firm to become a Warren Municipal Court Judge.
Now, I'm as jaundiced an observer of the human condition as the next guy, even if the next guy is H. L. Mencken, but I'm not willing to go quite that far. After all, it's not as though Terry was contesting whether a partnership existed; indeed, the dissent's major point was that neither party had disputed that. I think it's simply a bad decision at both the trial and appellate levels. Fortunately, it's very fact-specific, and the appellate decision is so obsequious in its deferral to the trial court's factual determinations that it has no real precedential value.
But it probably wouldn't be a bad idea to put something in writing. For all the talk from lawyers about how oral contracts aren't worth the paper they're not written on, sometimes we can be quite cavalier about our own affairs.
No Courts Update this week, because I was on the road and didn't have time to do it. Instead, we'll talk about a 4th Amendment decision last Wednesday out of the Ohio Supreme Court.
The facts in Blue Ash v. Kavanagh are fairly straightforward: the defendant was stopped for driving with expired plates on I-71 near Cincinnati, and when the officer discovered that the defendant's license had also expired three months earlier, he decided to impound the car. Because the defedant appeared "nervous," he also called for a drug-sniffing dog. When the dog was brought to the scene a short while later, it alerted to the driver's door. The defendant at that point confessed that there was a gun in the car, and the police retrieved an unloaded pistol from the console.
The trial court had denied a motion to suppress, but the 1st District had reversed. The Supreme Court in turn reversed that, and upheld the defendant's misdemeanor conviction. Three judges dissented, mainly because they didn't think the case should have been accepted for review in the first place, Justice Pfeiffer commenting that "because of its fact-specific nature, the majority opinion is unlikely to provide meaningful guidance to the bench and bar."
At first glance, the impact of Kavanagh does appear muted. The decision turns on whether the police officer had the right to impound the vehicle because of the expired plates and license. Under state and local law, the officer had the discretion to do so: the vehicle couldn't be legally driven, and the defendant couldn't legally drive it anyway. The court concluded that the officer exercised his discretion, which allowed the traffic stop to continue until the dog arrived, and the dog's alerting to the scent of drugs gave the officer probable cause to search the car. (Oddly, no drugs were found. The defendant told the officer that his friends often smoked dope in the car, and that's probably what the dog alerted to. There's a moral there, boys and girls: don't let your pals toke up in your ride.)
But let's get back to that issue of discretion. One of the reasons that search and seizure law is "something other than a seamless web" is because of the virtually infinite variety of factual situations which can present 4th Amendment questions. Those who argue for greater deference to police decisions have a point: it's a little ridiculous to have a someone in a black robe (or three or seven or nine someones in black robes) spending hours or even months picking apart the decision a police officer had a split-second to make.
On the other hand, Kavanagh presents the other side of that coin: giving too much discretion essentially allows the officer to determine the extent of a person's Fourth Amendment rights. Justice Pfeiffer points out that the offenses were minor misdemeanors, and argues
Instead of citing people who forget to renew licenses and registrations and having them pay a fine as a consequence of their forgetfulness, today this court sanctions the impoundment of every car whose registration is out of date and sanctions forcing every person -- the elderly, mothers with young children, etc. -- to find alternative means to his or her destination, if his or her license has not been timely renewed.
He's wrong about that. Police aren't going to use their discretion to impound the cars of the elderly or mothers with young children. They're going to use it to impound the cars of young people, black people, people that are different from them, people who give them a hard time, or just people about whom they form some kind of "inchoate hunch" -- leagues removed from "reasonable suspicion," let alone probable cause.
That that might be exactly what happened here is revealed by a footnote in the Court's opinion:
It is unclear from the record whether defendant was cited for driving with expired tags in violation of R.C. 4503.21 or operating without a valid license in violation of R.C. 4510.12, or both.
In short, there's nothing to indicate that Kavanagh was ever charged with the offenses that got the car impounded in the first place.
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