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.
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