May 2007 Archives
I had a post a couple weeks back about prosecutors' comments in closing argument about the defendant's failure to testify, and noted that Ohio law is pretty liberal on that score: statements that the state's case is "unrefuted" or "uncontradicted" are routinely allowed. Along that line is the 6th District's decision last week in State v. Silvey, which rejected the defendant's contention that the prosecutor had crossed the line by summarizing the victim's testimony in summation and then telling the jury,
"And not one person has taken this stand and said that did not happen. Not one. Look at the facts in the case, look at the testimony you've heard, and more importantly, look at the testimony that you didn't hear. No one took the stand and said this isn't true."
The problem with Silvey is that the case involved a molestation of a 12-year-old girl. Needless to say, there were no witnesses to the incidents: the only one who could have contradicted the victim's testimony was the defendant himself, because he was the only other one who was there.
It's one thing to argue that a comment that the state's evidence is "uncontradicted" doesn't directly reference the defendant's failure to take the stand; frankly, I think it does, and so do courts from a lot of other jurisdictions, but I can at least see the logic in the contention. In the normal case, it is perhaps appropriate to note that there are no eyewitnesses which support the defendant's proposition, no alibi witnesses to establish he was elsewhere, no forensic witnesses to testify that it wasn't his fingerprints or his bullet or his DNA.
But it's hard to see how it's not a reference when the only possible contradiction could come from the defendant himself, especially when that's bolstered by the prosecutor telling the jury to "look at the testimony you didn't hear." And courts should be able, and willing, to make distinctions between cases like this and "normal" cases.
That's why I don't get too exercised about cases like the one I talked about yesterday, State v. Jackson, where the court reversed a conviction for prosecutorial misconduct on exceedingly shaky grounds. There are a lot more cases like Silvey than Jackson.
If you've got a criminal case where you're thinking of making an argument on prosecutorial misconduct, you'll want to take a look at the 8th District's decision last week in State v. Jackson. It's probably the most pro-defense decision on that issue that I've ever seen.
The facts in Jackson were nasty: Jackson was charged with 26 counts of rape, gross sexual imposition, and kidnapping against his two granddaughters. The two -- T and M, in the court's opinion -- were the prime witnesses against him, and testified to a wide range of predatory misconduct that he'd committed when they'd reached puberty. The incidents came to light when T was 16 and living with other relatives; one of the relatives found a letter she'd written about the incidents, confronted her with it, and got her to talk about it. M broke her silence a month later.
The appellate panel -- Judges Rocco, Sweeney, and Boyle -- reversed Jackson's convictions on all counts, finding
The record in this case demonstrates the prosecutor failed to limit himself to appropriate closing argument by: 1) stating facts that were not in evidence; 2) extensively giving his personal opinions on the credibility of the witnesses; 3) denigrating the defense; and, 4) appealing on behalf of the victims to the sympathy of the jurors.
To be perfectly candid, none of the comments appear nearly as egregious as those commonly held to constitute prosecutorial misconduct; indeed, they aren't as egregious as some of those held not to constitute prosecutorial misconduct. The basis for the conclusion that the prosecutor "stated facts not in evidence," could largely be characterized as simple mistakes: for example, the prosecutor confused which of the two girls had come forward first. Another was the statement that T had told what happened to her "when she was finally in a safe place," the court finding that was contradicted by the fact that T had run away from other homes after that. I'm not sure that's even a contradiction, and it seems to fall well short of the situation in State v. Liberatore, say, where the court reversed because the prosecutor had spent a sizable amount of time arguing that a key witness hadn't testified because the defendant had threatened him, without any factual support for that claim.
The finding that the prosecutor impermissibly vouched for the credibility of his witnesses seems to be a stretch, too:
The prosecutor further asserted that the "only" people "who were there [during the incidents] came in and told 'ya that [Jackson] raped them, that he fondled them, that he kissed their breasts." Furthermore, "not once did they switch up or falter or change their story. The truth does not change." The prosecutor thereby asserted his witnesses were truthful.
Well, if that's what now constitutes vouching for the credibility of one's witnesses, the times, they are a'changin'. In fact, the case law pretty consistently holds that the prosecutor crosses the line only if he personally expresses his belief that the witnesses are telling the truth.
I'm not sure what to make of Jackson. One of the problems with prosecutorial misconduct cases in general is that they're very fact-specific; given the limited precedential value in that type of situation, Jackson's may be further eroded by the fact that it's such an outlier. Frankly, my guess is that the gang across the street is getting a little ticked at some of the cases they're seeing and decided to send a message, even though the prosecutor in this case might not have deserved it.
The Robed Seven in Columbus were busy last week; not only did they hear oral argument on 15 cases, as I mentioned on Friday, they handed down a number of decisions as well. One of them allows anesthesiologist assistants to perform spinals and epidurals under "appropriate" supervision. I think my own health insurance plan -- which isn't a very good one; the only in-network medical facility is Bob & Emma's Hospital and Souvenir Emporium in Lodi -- is even broader in what it specifically permits: I had minor shoulder surgery last year, which was assisted by a couple of guys from the motor pool. Another decision concerned drug-sniffing dogs, which are certainly not man's best friend; I'll have a post on that later this week. On to the courts of appeals...
Civil. 6th District reverses case where court gave tax exemption for child support to husband where he was earning $45,000 and wife was earning under $10,000, says lower court should have evaluated the earned income credit for in allocating the exemption... Good case from the 10th District on when firing can constitute voluntary abandonment of employment under workers comp... Here's a new one: plaintiff files negligence case three weeks after statute of limitations expires, claims tardiness in filing is excused because she was incompetent due to "unsound mind"; 12th District didn't buy it... 9th District holds that where defendant made motion to vacate under Rule 60(B)(1) and (3), court couldn't grant it under 60(B)(5)...
Criminal. 5th District upholds drug possession conviction where state tested only sample of drugs... 12th District reverses delinquency finding on grounds that juvenile's waiver of counsel was inadequate... 9th District rejects entrapment defense where there were no fewer than 150 calls between defendant and snitch, most initiated by defendant... 4th District holds that where defendant attempted to call co-defendants as witnesses, and trial court's advising co-defendants of their right against self-incrimination led them to change their minds about testifying, court's admonition did not rise to level of violating defendant's right to call witnesses...
Let me see if I got this right. In State v. Bartley, the 5th District confronts a situation where the pro se defendant in a midemeanor domestic violence case claims that his waiver of counsel wasn't valid. It agrees that the court's colloquy with the defendant was insufficient -- it wasn't any different from the one the Supreme Court held invalid a month ago in State v. Brooke. The court further notes that, pursuant to Brooke, "once appellant challenges the validity of the waiver of counsel, the State must establish that a proper waiver of the right occurred." The state contended that the right to counsel was fully explained in a videotape the defendant was shown prior to trial, but didn't include the videotape in the record. So the court holds that because the videotape isn't there, the record is incomplete, and when the record is incomplete, it will presume regularity in the proceedings below, and affirms the defendant's conviction.
Did that make sense when they wrote it?
Speaking of not making sense, the defendant's second assignment of error in State v. Dietz was "IN VIOLATION OF DUE PROCESS, THE GUILTY VERDICTS ON THE BUGLERY AND ASSULT WERE ENTERED AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE." Problem No. 1 was the misspellings. Problem No. 2 was that it was a drug case; there were no charges, let alone convictions, of burglary or assault. Problem No. 3 was the court realized, and noted, that appellate counsel had lifted the assignment of error verbatim, misspellings and all, from another appeal she'd done in the same court just a month or so before. At least that case involved a burglary and an assault, but Problem No. 4 was that the defendant there had been acquitted of the burglary. There's really no excuse for that...
The Ohio Supreme Court had oral argument in no fewer than fifteen cases this week, which for some reason put me in mind of Mark Twain's observation that no man's liberty is safe when Congress is in session.... Anyway, here's a brief recap of some of the more interesting decisions coming to a store near you:
Gliozzo v. University Urologists. I highlighted this case when the 8th District handed it down last May; what happened was that the defendant had a valid claim for lack of proper service, raised it in his pleadings, but didn't press the issue until the eve of trial. The appellate court voted 2-1 to reverse the dismissal, holding that despite asserting the defense initially, the defendant waived it by participating in discovery and pretrial negotiations. The smart money here is on a reversal.
Manley v. Marsico. Civil Rule 10(D)(2) requires that a medical malpractice claim be accompanied by an "affidavit of merit" -- an affidavit from a medical professional saying that there's evidence to support the case. The plaintiff didn't include one, so the defendant's made a motion to dismiss. The plaintiff filed a motion to supplement the pleading with an affidavit, and the court granted the motion. The defendant appealed, and the court of appeals held the denial of a motion to dismiss wasn't a final order. That's what the Supreme Court is going to decide, but of course, the central question will be whether the failure to include the affidavit at the time of filing the complaint is fatal. In this corner, Form, in that corner, Substance. May the best man win... This one's pretty close to even money, but if I had to pick, I'd say that the Court will hold that the pleading can be supplemented with the affidavit at a later time.
State v. Hassler. This is one of those cases where the Supreme Court has to clean up its own mess. The DWI statute provides that, to be admissible, a test for alcohol has to be taken within two hours after the violation. (It did at the time of this case; it's since been amended to allow three hours.) Back in 1988, the Supreme Court held that the state had to "substantially comply" with that section -- in non-lawyer-speak, stick to the time limit -- in prosecutions for the per se violation (being over the blood-alcohol limit), but could go beyond the time limit where the offense charged was the standard "driving under the influence" charge. Then in 2005, a case in which the defendant was charged with aggravated vehicular homicide by virtue of driving drunk, the Court held that substantial compliance was necessary, without making any distinction between a per se violation and the general one. Hassler's an agg vehicular homicide case, too, where the police waited eight hours before getting the sample. (The defendant refused, and the cops had to get a warrant.) I'd expect an affirmance here.
State v. Muttart. This is probably the most interesting case on the docket. For various reasons, statements of children in sexual molestation cases often come in through some exception to the hearsay rule, especially excited utterances, statements made for purposes of medical diagnosis and treatment, and the generic hearsay exception for child sex abuse cases under Evidence Rule 807. For various reasons, children are sometimes deemed to be incompetent witnesses in those cases, especially if they are very young (under five). The question presented by Muttart is the interplay between competency and hearsay: must a court hold a hearing and determine the child competent before allowing the child's hearsay statements to be admitted? The specific issue in Muttart is whether competency has to be determined to allow statements made for purposes of medical diagnosis and treatment, under Evidence Rule 804(B)(4). Most court of appeals decisions have held that it doesn't, but back in 1994, the Ohio Supreme Court held that a competency hearing was required for admission of statements under 807. (As for the third exception, all the court cases indicate competency isn't at issue for determining whether an excited utterance is admissible.) Given the language in the 1994 decision, I think the Court's going to be hard-pressed to distinguish 807 statements from those made under 804(B)(4).
There was also another case argued, involving a landfill in Auglaize County, and which presented the following issue:
When a contract between political subdivisions includes a specified term of 12 years, does a provision in that agreement agreeing that one party will assume complete responsibility for "all the environmental monitoring (for a facility) required by applicable statutes and regulations... both prior to and subsequent to closure (of that facility)," extend liability for environmental monitoring beyond the general 12-year term of the contract?
As those of you who are regular readers of this blog know, something like this is right up my alley, so I'll be spending all next week discussing it in detail.
Sorry for the delay in getting this up today. At around 7 this morning, AT&T decided, for reasons unknown, that we had canceled our office DLS, and disconnected it. It only took them seven hours to correct their error. Anyway...
Ralph Wilson raped four women back in 1975 and 1976. He was convicted of the first rape, and pled guilty to the other three. That wasn't his first offense; he picked up a weapons charge back in 1966, when he was 17, and a felonious assault case eight years later. After he did a dime on the rapes, he got into trouble with a DWI and a parole violation, then did another nine years on a B & E, finally getting out of prison in 2001.
In 2004, the court held a hearing to determine whether he should be designated as a sexual predator on account of the rapes. The trial court said no, but the state took it up, and the 8th District disagreed, holding that
In reviewing the record, we find the state established, by clear and convincing evidence, that Wilson is likely to engage in future sexually oriented offenses. Wilson had a prior criminal history and displayed cruelty in his attacks. Therefore, based upon the evidence in the record, we find the trial court's decision was against the manifest weight of the evidence.
Well, yesterday, in State v. Wilson, the Ohio Supreme Court decided that the trial court was right in the first place. It pointed out that the trial court, in deciding not to designate Wilson a predator, primarily relied on the fact that he was now 54, that almost thirty years had elapsed since his last sex offense, and that indeed eight of the ten factors the trial court is supposed to weigh under 2950.09(B) militated in his favor. (That little tidbit was missing from the court of appeals opinion; in fact, the Supreme Court correctly noted that the appellate court "did not evaluate or discuss the trial judge's rationale or any of the evidence the judge cited in support of his decision finding that the state failed to prove its case.")
But the Supreme Court's decision in this case has more import than just correcting a court of appeals ruling. The key to the case, of course, is the appropriate standard of appellate review for evidentiary issues. For whatever reason, under Ohio law that involves a bit more complexity than you might expect.
First, although a lot of lawyers, even some appellate ones, still regard sufficiency of the evidence and manifest weight of the evidence as the same thing, they're not. About ten years ago, in State v. Thompkins, the Ohio Supreme Court decided that the two standards are "quantitatively and qualitatively different," and its analysis has been repeated like a mantra in just about every court of appeals decision involving either concept since then. The short version is that under sufficiency, you look at the evidence and construe it most strongly in favor of the state, not getting into credibility; if all the elements are shown, it passes the test. Under manifest weight, though, the appellate court gets to sit as a "thirteenth juror," can reweigh credibility, and can reverse to correct a "manifest injustice."
But wait! That's only in criminal cases. In civil cases, there probably isn't a distinction between the two. (Wilson comes close to conceding as much.) And manifest weight isn't nearly as freewheeling as it is in criminal cases: in civil cases, the test is whether there's "some competent, credible evidence going to all the essential elements of the case."
As can be seen, the civil standard is a good bit more deferential to the lower court than the criminal standard. And in Wilson, the Court follows the line of cases holding that the purpose of the sexual predator classification is not punitive, but remedial (yeah, sure), and thus the civil, not criminal, standard is the appropriate one.
The irony of the Court's decision in Wilson is that, although it wound up affirming a lower court determination that a defendant was not a predator, the net result will probably be to wind up with a lot more predator designations in marginal or dubious cases. As I'd mentioned a couple of months ago, the law on sexual predator classifications is so broad that there's not a lot of guidance coming from appellate courts on the sexual predator designations. Given the much more deferential standard announced by Wilson, that guidance is going to be even harder to provide.
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And if you click here, you can get a virtual tour of both the present and proposed lethal injection facility for the State of California. I am not making this up.
I'm on the road today (or yesterday, when I wrote this), so that'll be it for now. Be back tomorrow.
One journal entry says, "The defendant having been previously convicted by a jury of the crime of felonious assault, he is hereby sentenced to..." Another says, "The defendant, having previously pled guilty to receiving stolen property, the court sentences defendant as follows..." Any problem?
There is in the 9th District (which comprises Summit, Medina, Wayne, or Lorain Counties). If you've got a criminal case there, in either the trial or appellate court, you need to be aware of the fact that the Court of Appeals for that district has applied an exceedingly strict interpretation to Criminal Rule 32(C)'s requirement that "a judgment of conviction shall set forth the plea, the verdict or findings, and the sentence." Since March, the 9th District has held that a failure to include all of those will result in dismissal of the appeal for lack of a final appealable order.
That means that either of the two journal entries above would get bounced. Even if the defendant has been convicted after a trial (bench or jury), the final entry has to include the fact that he initially pled not guilty. Even if he pled guilty, the journal entry has to include a finding of guilt by the trial court. In fact, a statement in the entry that "defendant has been previously convicted of rape" does not satisfy the requirement of a finding of guilt. (Apparently, the entry has to include the further notation that, based upon the jury's verdict, the court finds the defendant guilty.) There were two more cases along this line last week, here and here, and the initial case in this line was State v. Miller, which was decided back on March 26.
Frankly, I think the court's interpretation of Rule 32(C) is hypertechnical, and represents an exaltation of form over substance. The real problem is that you can wind up hurting your client if you're not aware of it; it's a pain to file all your briefs, wait six months for oral argument, and then have the court never even reach the merits of the appeal, but instead kick you out so that you have to start the appeal process all over again.
You don't actually have to do that; as the court indicated in its last decision (and in Miller), after getting a correct journal entry, you have to refile the appeal, but at that point can move the court to transfer the papers from the earlier appeal and consider the case submitted on the briefs that have been already filed, and the court will give the case "expedited" consideration. But if you've got an appeal pending, check the journal entry now, and if it doesn't pass muster, dismiss the appeal at this point rather than waiting any longer. Also, if you've got a criminal case that goes to verdict, and you want to appeal it, make sure that the trial court prepares a correct journal entry.
One final point: Miller says the court will apply the plea requirement prospectively, that is, the failure of the journal entry to indicate what the defendant's plea was will not void the entry as long as it was filed before the Miller decision came down. Everything else is applied retroactively, though.
The Ohio Supreme Court handed down a few decisions of interest this past week, one holding that if sovereign immunity applies to a political subdivision, it also applies to employees of that subdivision, unless their actions are willful or malicious, the other that a minor misdemeanor disorderly conduct is a lesser included offense of domestic violence. In the courts of appeals:
Civil. 6th District affirms grant of summary judgment in open and obvious case, says condition must be "objectively" observable, rejects claim that although plaintiff observed condition, she subjectively failed to appreciate risk... 2nd District also affirms summary judgment in slip and fall on spilled "smoothy" in mall, on basis of lack of notice... 3rd District holds trial court can suggest modifications to shared parenting plan, refuse to grant it if parties refuse modifications, but can't make modifications to it on its own... 5th District upholds reallocation of tax exemption to wife, says court can revisit issue anytime it deals with modification of child support order...
Criminal. 2nd District reverses grant of motion to suppress of consent search, says consent was obtained within reasonable period after traffic stop, thus does not require reasonable suspicion of criminal activity... 12th District holds that conviction of reckless operation does not bar prosecution of failure to comply on double jeopardy grounds... 8th District rejects contention that defendant is entitled to separate trials because joint trial eliminates ability to call co-defendant as a witness... 3rd District holds that where trial court fails to advise defendant at sentencing of post-release controls, remedy is to conduct new hearing before defendant's sentence is completed; can't cure error by nunc pro tunc entry... 12th District affirms conviction for attempted agg murder in defendant's plot to hire hit-man to kill wife and child; good discussion of when solicitation crosses line into attempt...
I'm giving some thought to moving my practice to the 2nd District; there were no fewer than five cases there this past week where trial courts had granted motions to suppress. (The state was a bit luckier in the appellate level; three of those rulings got reversed.)
Of course, things are never dull in the 8th District here, either. The court's opinion last week in State v. Gooden is an especially interesting read. Gooden was convicted on the theory that he was the "inside man" in a robbery of a CVS drugstore; the appellate court, by a 2-1 vote, reversed on insufficiency of the evidence. It's one of those cases where you read the facts and think that maybe there's something there, but it just doesn't add up to enough for conviction.
Normally, I close out the Court Updates with something outlandish from a court opinion, but this week and last I haven't had any luck in finding something like that. So I'll leave you with this for your amusement instead: go to Google Maps, click the tab for Get Directions, put Boston in the first box and London in the second, hit enter, and then check Direction No. 5.
The timing of the 8th Distict's decision last week in State v. Johnson was interesting, to say the least. The appeal in Johnson was primarily directed to the prosecutor's statement in closing argument that "the evidence in this case is undisputed. There's no other side of the story. There is Mr. Burton [the victim], who testified, and told you what happened." As most of us -- but, as we'll see shortly, not all of us -- know, commenting on the defendant's failure to testify is a no-no, and has been for many, many years. The defendant argued that this entitled him to a mistrial, but the appellate court concluded that the trial judge's curative instruction to disregard the comment had been sufficient.
Frankly, it's not clear that a curative instruction was even necessary. As this 8th District decision from 2004 points out, while a number of Federal courts have held that a reference to the state's case being "uncontroverted," "unrefuted," or "undisputed" is deemed to be an inappropriate comment on the defendant's exercise of his right against self-incimination, the Ohio courts have pretty much uniformly rejected this argument, holding that those remarks are merely a reference to the strength of the state's case.
The reason that I found the timing of the Johnson decision interesting was because of the little drama that's played out over at the Justice Center these past few weeks. It began when, after two weeks in a capital murder trial, the second-chair prosecutor got up in closing argument and informed the jury that they'd never know why the defendant committed the crime: he could've taken the stand to tell them why, but had chosen not to.
The judge declared a mistrial, and this past Wednesday had a hearing to determine whether to dismiss the case. Although a mistrial doesn't normally bar retrial -- the defendant waives the double jeopardy argument by moving for the mistrial -- an exception exists where the mistrial is necessitated by prosecutorial misconduct.
That exception's a narrow one, though; as this 2003 8th District case explains, retrial is barred only when the prosecutor's misconduct was intended to goad the defendant into seeking a mistrial. That's a tough standard to meet; the last time I could find it happening in Ohio was in a 1981 case out of Stark County, a DUI case where the prosecutor had spent a good portion of his closing argument telling the jury that if they wanted more drunk drivers on the road, they should acquit the defendant.
So I wasn't terribly surprised when, at the hearing on Wednesday, the judge didn't dismiss the case, concluding that the prosecutor's error, despite its egregious nature, was merely bone-headed instead of intentional. She did order the prosecutor's office to pay a fine of $26,000, which she estimated was the cost of retrying the defendant. I thought that was a nice touch.
The newspaper article reporting the hearing mentioned that the defendant intended to "appeal the judge's decision to Federal court." Actually, the decision can't be appealed at all; the law in Ohio is that a denial of a motion to dismiss for double jeopardy is not a final appealable order, and the defendant has to wait until after the trial to appeal it. (That stems from a 1990 Ohio Supreme Court case which is discussed in this 2004 8th District case.) And, of course, appeal would have to be to the state court, not the Federal court. I assumed the reference in the article to Federal court was a mistake, and due to the fact that the local paper will often have legal cases covered by reporters who don't know any more about the law than, well... prosecutors trying death penalty cases.
After further investigation on my part, though, I am able to quash the rumor that, at the retrial, the first-chair prosecutor will be wearing an "I'M WITH STUPID" t-shirt.
I don't do a lot of Federal criminal work, but I'm helping an attorney with a sentencing memorandum now, and it's given me a good opportunity to review the 6th Circuit's post-Booker decisions. As you probably know, prior to Booker Federal sentences were determined according to the Sentencing Guidelines, first published in 1984. The Guidelines rank every crime and every factor involved in it (amount of money stolen, quantity of drugs possessed) and assign that a value, then cross-index the result with the defendant's criminal history, which is itself a number derived from assessing the defendant's prior convictions. This results in a "Guidelines" range, and the judge must impose a sentence within that range unless he comes up with a really, really good reason not to. It's a fascinating exercise, and I hear Milton-Bradley has bid on the rights to make it a board game.
Then the Supreme Court came along a couple years back in Booker and declared that all those determinations about amounts of money stolen and quantity of drugs possessed were judicial fact-finding, and since here in America we're supposed to at least give lip service to the idea of a jury determining key facts like that, that's a no-no. After much wailing and gnashing of teeth, the Court by a 5-4 vote decided that the Guidelines didn't have to go altogether, but could still be used as long as they were treated as "advisory" instead of as mandatory.
The course of law, like love, is never smooth, and it hasn't been in this case. Some courts have decided that a sentence within the guidelines range is still "presumptively" reasonable, while others have decided that they're not. And that's just in the 6th Circuit. If you want a thorough analysis of the 6th Circuit's post-Booker decisions, you should check out Sumter Camp's excellent summary on the 6th Circuit Blog.
The short version is that, in the two-plus years since Booker came down, there have been exactly two decisions where the 6th Circuit affirmed a sentence which was below what the Guidelines provided. One of those decisions was last week, in US v. Cherry, where it affirmed a 120-month sentence in a child-porn case; the Guidelines provided for a sentence between 210 and 262 months. If you've got a sentencing case in Federal court, it's an opinion you should have. Don't get too excited, though; just four days later, a different panel reversed a 72-month sentence in a child-porn case where the Guidelines provided for the same range as Cherry.
Some clarification may be around the corner. Back in February, the Supreme Court had oral argument on two sentencing cases, Claiborne v. US and Rita v. US. The issues they present are flip sides of the same coin: essentially, in Rita the question is whether a sentence within the Guidelines is presumptively reasonable, and in Claiborne the question is whether a sentence outside of the Guidelines is presumptively unreasonable.
Then again, it may be that it's too late to hope that the Supreme Court can clarify what's become an increasing muddle, and not just on the Federal level. I've been practicing for over 30 years, long enough to remember the "old days" when a judge's discretion in sentencing was largely unbridled, as long as it was within the limits provided for the particular crime by the legislature. Then complaints arose about sentencing disparities and the need for more codification and uniformity, and we wound up with "truth in sentencing" and the Guidelines and requirements that judges consider the "recidivism" and "seriousness" factors, and evaluate whether this was the "worst form of the offense" or whether granting probation would "demean the seriousness of the crime." The result of all this has been a substantial expenditure of judicial resources, both at the trial level in complying with the new rules, and at the appellate level ensuring that compliance. Even post-Foster, the number of state criminal appellate decisions dealing with sentencing probably is in the five-to-ten percent range; I wouldn't want to even hazard a guess at the comparable percentage of Federal cases that deal with Booker and Guidelines issues.
I'd like to say that, after all that, sentencing appears to be much fairer now than it was then. I'd like to say it. I don't really think I can. Sometimes different isn't better, and this might be a case where the game wasn't worth the candle.
The police see a bunch of guys engaged in activities consistent with selling drugs, round them up, and find a set of car keys on the ground. They ask who the keys belong to; nobody fesses up. They use them to open a nearby car, and find drugs and a number of personal items belonging to one of the suspects. Can the suspect argue that the search was illegal?
Nope, says the 8th District last week in State v. Middleton. Whether the search was proper under the 4th Amendment is actually immaterial, because the defendant, by denying that the property was his, lacked standing to assert the search's illegality. Actually, there's a long line of decisions which support that result, and there's a good review of them in this 2004 11th District decision. The general rule is that one who denies possession of property has, in essence, abandoned it, and lacks the possessory interest sufficient to invoke 4th Amendment protection.
There's one notable exception to that: where the denial is basically compelled by the officer's prior search of the item. It's difficult to expect a person to admit to ownership of property that's going to wind up getting him arrested. This US 10th Circuit decision is a good one to have on that score.
By the way, in light of my comment on Monday on your suggestions about this site, if one of them was "have shorter posts," you'll get your wish this week. I've got a lot of stuff going on, and so it'll be short and sweet. Well, sweet we're not sure, but short, definitely.
Things aren't going so well in Cleveland right now. Three weeks ago, 15-year-old Arthur "Ace Boogie" Buford, already on probation for one aggravated robbery, was killed when he made the unfortunate career decision of trying to rob Damon Wells at gunpoint, and it turned out that Damon was packing, too, and was quicker on the draw. The community quickly rallied around... well, Ace Boogie, to the point Wells was driven from his home, a turn of events which has provoked some soul-searching and, hopefully, the epiphany that a community which excuses, much less exalts, 15-year-old thugs is in serious trouble. Then last week Ford Motor Co. announced it was shuttering its casting plant here, the source of direct employment for 1600 workers, and indirect employment for thousands more. And continuing efforts to contact Frank Jackson and inform him that he won the mayoral election a year and a half ago, and might want to give some thought to actually assuming the duties of that office, have so far proved unavailing.
But a shout-out to Sue Altmeyer, who runs the Cleveland Law Library blog, for pointing out that we may have turned the corner. On May 2, according to page 11 of the City Record, a new ordinance was proposed in City Council which would increase the penalty for possession of less than 100 grams of marijuana from a minor misdemeanor to a fourth degree misdemeanor. Actually, according to the Record, it would be a "forth degree misdemeanor," but whichever spelling you prefer, it's a welcome development in our continuing war against drugs. A minor misdemeanor doesn't count as a criminal conviction, but a fourth -- er, forth -- degree misdemeanor does, and if there's anything the black community here needs, it's more young men with criminal records.
The sponsor of the bill was Zachary Reed, a black councilman who's presently on probation for a drunk driving conviction, and earlier spent ten days in jail for violating that probation.
"It is difficult not to write satire."
Juvenal, c. 130 AD
There were three cases from the Ohio Supreme Court this past week: one held that the Patients Bill of Rights overcome a county nursing home's claim to sovereign immunity in a lawsuit brought on behalf of a patient; another held that an arbitrator could use case law in defining what constituted "good cause" if the contract he was interpreting didn't define it; and the third held that "attempted" drug crimes were governed by the individual drug statutes, rather than the general attempt statute.
In the court of appeals, not too much went on, for whatever reason. Maybe the mail didn't get to Lexis-Nexis; at any rate, there were only about 50 decisions last week. The highlights:
1st District affirms conviction of tampering with evidence where defendant threw down bag of cocaine in an attempt to avoid being caught with it... 8th District reverses conviction of receiving stolen property, finds evidence insufficient to show defendant knew car was stolen... 12th District holds that trial court's colloquy regarding defendant's right of self-representation was insufficient... 12th District holds that email messages don't amount to lease contract, also holds that effect of eviction on credit rating prevents tenant's claim from being moot... 11th District holds that magistrate not required to evaluate tax consequences of marital distribution where parties don't present expert testimony on that issue...
Yesterday was exactly one year since I made my first post on this blog. In May of last year, I had exactly 17 hits; last month, it numbered in the thousands. True, a number of those were Google or Yahoo searches from wherever, like the guy from the Isle of Anglesey who, for reasons known only to him and his god, decided to search the Florida law on obstructions in the aisle. But I've got a number of regular readers, too. More importantly, I enjoy doing this. It keeps me abreast of what's going on in the law, and it satisfies my writing jones.
I'm going to make some changes, though. First, once I figure out how, I'm going to turn off the comment feature. I've had about 12 comments in the past year that are actually valid. Unfortunately, the way the Internet works, I get about that many spam comments every ten minutes. Rather than scanning several hundred messages telling me the great variety of drugs I can purchase online, to say nothing of helpful hints on how to increase my penis and/or breast size (I've decided to hedge my bets and do both), just to find the occasional comment from a real person, I'm going to drop that feature. If there's something you think is worth mentioning, send me an email, and I may even use it as a jump-off point for a post.
That's another thing: feel free to drop me an email, telling me what you think of the site, or making suggestions. Shorter posts? More on civil cases/criminal cases? Less commentary? More commentary? I'm always open to ideas.
Last, I've put links to some other sites here, and will be featuring them a little more. One of the new ones I put up is CrimeLaw, because I ran across this comment. What it says is obviously true, and something I've certainly noticed, but he puts a slightly different, and more interesting, slant on it.
Do this: Go into any criminal court in the country during a person's first appearance. Count the number of people wearing a suit or even business-casual clothing. When I first saw a full courtroom, I almost wept. "No one," I thought to myself, "was ever told that you should wear a suit to court." Think that through. Many people go through their entire lives without anyone guiding them, telling them basic things like, "Appearances matter." Imagine what other lessons they must have missed out on?
See you tomorrow.
On New Year's Eve in 2000, Marie Syverson hurt her ankle ice-skating. She and her fiancee went to the emergency room at Southwest General Hospital. Six years later, that fall wound up costing her lawyer $8,500. Actually, it wasn't the fall, it was the way the lawyer handled the ensuing civil case, says the 8th District in Sigmon v. Southwest General Health Center.
According to Sigmon -- Syverson got married eight months later, so we'll use her married name, as the opinion does -- things had gotten funky her first night in the hospital: a doctor Khan had appeared, accused her of being addicted to drugs, and told her she had to leave the hospital because she didn't have insurance. She wound up having surgery to repair the ankle a couple days later at another facility. She sued Southwest General four days before the statute ran, claiming that they were negligent in treating her, and that the accusation of drug use and discharging her because she didn't have insurance was outrageous conduct. Although, as noted, she didn't get married until after the incident, the complaint included a claim for loss of consortium.
Things went downhill pretty quickly. Dr. Khan wasn't an employee of the hospital, he claimed he never treated the plaintiff, and the hospital records corroborated that. The bigger problem was that an expert couldn't be found to say that the hospital's treatment of the plaintiff was negligent. The first lawyer withdrew, and a new lawyer came in and obtained an extension of time to file an expert report. When he couldn't get one, he voluntarily dismissed the case.
He refiled it one day before the savings statute expired. The complaint contained the same bogus loss-of-consortium count, and now included a claim for punitive damages of equally dubious validity. What's worse, he still didn't have an expert. The court gave him over seven months to get one, and when he didn't, the defendants moved for summary judgment. He didn't oppose that, and after the motions were granted, the defendants asked for sanctions. The trial court agreed they were warranted, and so did the court of appeals.
What makes this a good cautionary tale, though, is that up until the very end the lawyer probably could have saved himself. Although both courts made much of the assertion of invalid claims -- loss of consortium, punitive damages, and the allegation that all of the defendants, not just Dr. Khan, had made the accusation of drug abuse and the threat to discharge the plaintiff for lack of insurance -- the biggie was that the lawyer didn't dismiss the case when he knew that it wasn't going anywhere. What was worse is that he failed to dismiss the case even when the client wanted him to.
Actually, that last part is somewhat understandable. It's fairly clear from the opinion that the attorney-client relationship broke down, perhaps even before the second complaint was filed. The lawyer wrote to his client in April, two months before the summary judgment motions were filed, telling her that the expert he'd hired had concluded there was no negligence, and that she needed to see if another lawyer would take over the case because otherwise the court would dismiss it. The client replied that she no longer trusted the lawyer, and didn't wish to pursue the case. Had he followed up on that by voluntarily dismissing the case, that would've been the end of the matter. It was only because the defense attorneys had to prepare and file the summary judgment motions that they pursued sanctions.
My guess is that the lawyer was worried about getting sued by the client, which is why he filed the second complaint, and then didn't dismiss it. That doesn't excuse his lackadaisical approach to the case: He originally asked his expert for a report in September of 2002, and didn't follow up on it until December of the following year, two months after he'd refiled the complaint. As the court of appeals noted, filing a med mal case without an expert isn't automatically sanctionable, but the combination of the lengthy delay in obtaining one plus not dismissing once it became apparent that the negligence claim was unsupportable makes for a different result.
If there's a moral to this story, besides making sure you do your due diligence, it's that we're lawyers, not captains. If the ship's going down, make sure you don't go down with it.
The other day I got an email from Ryan Zempel, managing editor of InstituteforLegalReform.com. Apparently, Ryan and I are good buds, because he addressed me by my first name. He then went on to say
I wanted to give you a heads up that ILR has released its 2007 ranking of the lawsuit climates in each state. Delaware tops the list (as usual) while West Virginia comes in at the bottom. Ohio dropped five places this year, moving from 19th to 24th.
That Ohio is dropping in a ranking -- whether it be aid to education, manufacturing jobs, literacy, or whatever -- is hardly surprising. In fact, it seems the only categories in which our rankings are going up is in poverty, and the number of people who wouldn't stay in this state at gunpoint. "Lawsuit climate," though, is a little more opaque of a term, until you check out the website and find that the Institute for Legal Reform views lawsuit climate through the lens of the Chamber of Commerce.
One might guess that the "in-house general counsel" and "other senior corporate litigators" who come up with these rankings have a particular point of view. The explanation for Ohio's fall to the middle of the pack is given here, with the short version being that the gains in imposing limits on tort claims over the past six years are in danger of being eroded, if not eliminated entirely. At least according to the Institute.
Now, I'm certainly not averse to pointing out the excesses of the tort system, as I did back here. On the other hand, the "common sense reforms" the Institute lauds appear to be rather one-sided. The "substantive progress made by the Ohio Legislature to fix the state's lawsuit system over the last several years," as the Institute phrases it, includes a new definition of employer intentional tort which actually requires that the employer have specifically intended to injure the employee. As the Supreme Court noted the last two times it struck down an identically-worded statute, this could create a scenario in which an employer would be guilty of a crime but exempt from civil liability.
Interestingly, the Institute's email coincided with the posting on the Supreme Court website of the Ohio Court Summary for 2006, a breakdown of cases being handled in Ohio's courts. One of the reports included in the summary is a tabulation of case filings, by type -- professional tort, product liability, and so forth. Out of curiosity, I compared the new case filings in various categories in the 2006 summary with the same info in the 1999 summary, the oldest one available on the court's site. That comparison doesn't give a whole lot of support to the idea that Ohio is suffering from a litigation explosion, at least insofar as torts go. New filings in professional torts are down 44% from 1999; product liability filings have decreased by 37%, and "other torts" have declined by 18%. By comparison, new criminal cases, as you might expect, are a growth stock, climbing by 38% in the past seven years.
And if you want to get a good idea of the economic havoc that the last seven years have wreaked in this state, you can take note that foreclosures have increased by a whopping 153%.
Some prosecutorial creativeness was on display in the 2nd District's decision last week inState v. Cherry. As some of you may know, but most of you probably don't (I didn't), a weapons under disability charge can arise if you've got a gun while you're a "fugitive from justice." In Cherry, the police had been called to the scene of a burglary in process, and wound up chasing the defendant's car. He ran into a ditch, and he and his accomplice booked it from there, but were quickly apprehended. The cops found a gun in the car, and charged him with weapons under disability under the fugitive from justice section. The basis for claiming he was a fugitive? His fleeing from the police during the burglary. The court of appeals bought it. Not to give anybody around here ideas...
The 2nd District made up for that with another decision last week, in State v. Boyce. Boyce had been identified as a suspect in a string of burglaries, and when the police observed him walking on the sidewalk about four blocks away from a burglary that had just been reported, they stopped him, handcuffed him, and patted him down. The frisk produced a wristwatch which Boyce claimed was his. The police didn't buy it, Mirandized him, and took him to the station. Thirty minutes later, they identified the watch as having been stolen in the recent burglary. Boyce was ultimately convicted of tampering with evidence, burglary, and eight counts of receiving stolen property, for which he was sentenced to seventeen years in prison. That's right, seventeen years; as I mentioned last week, that's apparently the way they do things in Clark County.
And apparently, this is the way trial judges handle the 4th Amendment down there; from the lower court's entry:
A reasonable, prudent person in Detective Jacob's position could certainly believe that his safety, or the safety of others, was threatened when he stopped the defendant. It was reasonable for Detective Jacobs to believe that the defendant had just committed a burglary and that he was armed. Accordingly, Detective Jacobs was justified in patting the defendant to see if he had any weapons on his person. Furthermore, it is reasonable to believe that a hard object, like a watch, could be a knife or some other kind of weapon. Therefore, Detective Jacobs was justified in removing the watch from the defendant's left front pants pocket.
Handcuffing the defendant in the course of Detective Jacobs' 'stop and frisk' did not convert the detention into an arrest since the handcuffing was reasonable under the circumstances. The restraint was temporary and lasted no longer than was necessary for Detective Jacobs to determine if the watch had been removed from the burglarized home. Handcuffing the defendant maintained the status quo and prevented the defendant from fleeing. Once the victim identified the watch, probable cause existed for an arrest.
Fortunately, the 2nd District decided that the appropriate test for a search was not what a reasonable Gestapo agent might believe. Although Boyce had conceded the reasonableness of the stop (a questionable concession, in my view), the appellate court noted that the stop and the frisk were two separate procedures, and nothing warranted the police in concluding that Boyce was "armed and dangerous"; in fact, the court pointed out that the testimony indicated nothing more than that this was simply the normal procedure of the police. It also found that the 30-minute detention to determine whether the watch was stolen was improper, too.
Back about seven years ago, ten-year-old Shayla Uddin drowned in the swimming pool of an Embassy Suites in Columbus. The pool was only five feet deep, but the water was "milky," according to all the witnesses; one testified that when she'd been in the pool, she'd been unable to see her feet. Shayla had apparently been on the bottom for about 30 minutes when someone discovered her by accidentally stepping on her body.
The parents brought suit, but were kicked out on summary judgment, the trial court holding that the swimming pool was an "open and obvious" danger. In a 2-1 decision, the court of appeals reversed. The hotel appealed, and the Supreme Court agreed to review it. A good decision, since the case offered the opportunity to clarify two significant issues.
The first is the question of the effect of a violation of administrative regulations on the open and obvious doctrine. (Not surprisingly, there's a reg which deals with the required degree of clarity in a swimming pool, which the hotel arguably violated. It specifies that the water must be sufficiently clear "that a black disc, six inches in diameter, is readily visible when placed on a light field at the deepest point of the pool and is viewed from the pool side." Who comes up with this stuff?) A violation of a legislative enactment is, of course, negligence per se, and it takes the case out of the open and obvious doctrine because, as this 8th District case points out, the doctrine is intended to relieve the landowner of a duty to warn, and he should not be relieved of that duty if the legislature has specifically imposed that duty by statute.
However, there's a difference between a statute and an administrative regulation, at least according to our Supreme Court. Back in 1998, they ruled that since legislators are elected and bureaucrats aren't, the pronouncements of the former should count more than the latter: thus, while violation of a statute is negligence per se, violation of an administrative regulation is merely evidence of negligence. So how does this square with the open and obvious doctrine? That would be one question for the Supreme Court to answer.
The other would be the applicability of the doctrine to minors. The 10th District had reviewed the case law, and found that it had even said in an earlier decision that the doctrine applied to both adults and minors. That case, though, involved an eighteen-year-old who'd drowned in a swimming pool. There have been some other cases which have discussed the issue, like those contained in the last couple of paragraphs of this opinion from the same court, but nothing definitive one way or the other.
And certainly, there's some strong arguments both ways. As noted, the doctrine's based on the idea that a landowner has no duty to warn others of dangers which should be apparent to them. But what's "apparent" to an adult might not be apparent to a child. An adult looking at the cloudy water in a swimming pool might appreciate that if they were to wind up on the bottom, nobody would be able to see them. That thought process might easily be beyond the capabilities of a ten-year-old.
On the other hand, once you cross that line, it's difficult to figure out where to draw the next one. What about a slow fourteen-year-old or a precocious child half that age? In Ohio, a child between seven and fourteen is presumed incapable of contributory negligence (the presumption is conclusive for children under that age), but how does the concept of the invitee's negligence even come into play, when the doctrine focuses on the concept of the landowner's duty? How do you compare duty and negligence? And what would be the practical effect of acceptance of a "child exception" to the doctrine? As I mentioned last week, courts have fairly consistently held that a pallet or other obstruction left in the aisle of a store is open and obvious, thus precluding liability. But what about a toy store which leaves an obstruction in an aisle, knowing that small children might be running around in the store?
As I said, the impending Supreme Court review would give the Court an excellent opportunity to decide these two important questions, and perhaps confront and resolve some of the intellectual inconsistencies in the doctrine.
So last week the Court -- or, at least, four of the judges on it -- changed its mind and dismissed the appeal as having been improvidently allowed.
Well, maybe next time.
The only case of note out of the Ohio Supreme Court this week was State v. Sterling, which struck down a provision of the DNA testing law which allowed the prosecutor to refuse DNA testing to an inmate, and then made his decision unreviewable by the courts. The Court unanimously held this was an unconstitutional violation of the doctrine of separation of powers. Ya think?
As for the US Supreme Court -- remember them? -- they've granted so few writs of certiorari that their argument calendar isn't even filled. At this rate, they'll hand down 71 opinions -- the fewest since 1865.
On to the courts of appeals:
Criminal. 6th District reverses conviction of two minors for being under influence in "public place," holds that interior of private automobile doesn't fall within definition... Defendant moves to withdraw plea before sentencing, judge says he'll apply stricter after-sentence standard but invites counsel to brief issue, 2nd District says defendant waived issue by not briefing it... 6th District affirms conviction of agg vehicular manslaughter, against sufficiency of evidence argument, where defendant bent down to pick up ringing cell phone and ran over child... 8th District affirms grant of motion to suppress where police detained defendant, who was in company of intoxicated man, for twenty minutes while they ran a record check on both, found warrant on defendant... 3rd District reaffirms that court need not personally advise defendant of rights in plea to petty offense... 9th District continues its new policy of dismissal appeals for lack of final order where judgment entry does not contain an express statement that defendant is found guilty; if you've got a criminal appeal in the 9th you need to read this...
Civil. 6th District reversed lower court's refusal to allow party to intervene to assert claim of adverse possession; good discussion of law on intervention as of right... 8th District holds that arbitration clause is substantively unconscionable in employment discrimination case, because clause requires each side to pay for own attorneys, and defendant could be ordered to pay plaintiff's fees if case were litigated in court...
As you might have gathered, I don't read through all the decisions each week in order to determine what goes in here. For the criminal ones, I'll generally glance through the first paragraph to see if there's anything that catches my eye. Sometimes something does jump out. This is the opening paragraph from the 2nd District's decision opinion last week in State v. Greathouse. One of these is not like the others...
Greathouse also contends that: the jury verdicts are against the sufficiency and manifest weight of the evidence; trial counsel was ineffective in failing to raise the issue of allied offenses of similar import; the trial court abused its discretion in denying his request for new counsel; the trial court abused its discretion in failing to order a competency evaluation; the trial court erred in failing to order a mistrial after Greathouse flipped over the defense table and was tackled by deputies; the trial court improperly removed Greathouse from the trial without securing a waiver of rights; and the trial court erred in imposing court costs.
In that light, it's not terribly surprising that the defendant's sixth assignment of error on appeal was, "APPELLANT'S OUTRAGEOUS CONDUCT PREJUDICIALLY AFFECTED HIS RIGHT TO A FAIR TRIAL."
We're still getting Foster remands, and even when that's run its course, courts will still be getting cases sent back for resentencing, and so the question emerges: if the case is remanded for resentencing, can the trial court give the defendant more time?
That was the issue last week in State v. Baker. Baker had gotten a three-year sentence for escape in 2005, but the case came back because of Foster, whereupon the trial court sent him packing again, this time for a four-year stretch. The 3rd District affirmed.
Their treatment of the issue, and how it's governed by both state and Federal cases, is troublesome. After all, the issue is a constitutional one: back in 1969, the Supreme Court held in North Carolina v. Pearce that due process barred a trial court's imposition of a harsher sentence on remand unless it could affirmatively demonstrate that objective information showed the defendant's conduct after the original sentence merited a stiffer one.
The 3rd District relied heavily upon a case they'd had just a few months back on the same question, where a judge gave a defendant 15 months in a resentence on a drug case, after having given him only 12 the first time around. In the earlier case, they'd reversed, finding that the judge hadn't indicated any basis for the increased sentence. In Baker, the judge during the second sentencing found that the defendant "lacked remorse" and that that "the public is at risk from his anti-social actions and needs protection." As far as the appellate court was concerned, that was enough of a finding to justify the higher sentence.
In Wasman, the Supreme Court clarified its Pearce holding by making it clear that enhanced sentences on remand were not prohibited unless the enhancement was motivated by actual vindictiveness against the constitutionally guaranteed rights. The Supreme Court further clarified the Pearce decision in Alabama v. Smith, explaining that, unless there was a "reasonable likelihood" that the increased sentence was the product of actual vindictiveness, the burden was on the defendant to show actual vindictiveness.
That's not quite right. The court didn't "make it clear" in Wasman that "actual vindictiveness against the constitutionally guaranteed rights" was required; that portion of the opinion found support of only four judges. The judgment was unanimous, though, because the reason for the higher sentence was that the defendant, in the time between the first and second sentences, had been convicted of another offense, and rest of the judges agreed that if any conduct after the first sentence warranted a stiffer sentence on remand, it was the defendant going out and committing another crime.
Alabama v. Smith is a little more favorable to the court's decision in Baker because there, as in Baker, there was no "subsequent conduct": the higher sentence was based upon factors that existed at the time the original sentence was meted out. There was one huge difference, though: in Smith, the first sentence was based on a guilty plea; after reversal, the defendant went to trial and was convicted. The Supreme Court concluded, quite obviously, that the trial court had much more information about the crime after the trial than it did on a plea (and in fact, that's exactly what the trial court put in the record).
In Baker, though, there's nothing to indicate that the trial court had any more information about the defendant's "remorse" or "anti-social tendencies" the second time it sentenced him than it did on the first. The higher sentence, then, wasn't based on subsequent conduct by the defendant, or even on new information about the defendant's prior conduct. It was simply based upon a re-evaluation by the trial judge of the same information it had at the time of the first sentencing. Given the highly subjective nature of sentencing criteria, allowing a judge to recast the same information in a new way on resentencing pretty much renders a nullity Pearce's presumption that a greater sentence on remand is vindictive.
There's another problem with Foster remands, though. Before Foster was decided, a judge had to make certain findings before imposing more-than-minimum, maximum, or consecutive sentences. Now she doesn't have to. Does that mean a judge can say on a Foster remand, "The first time I sentenced you, I was pretty much required to give you the minimum sentence because you hadn't been to prison before. I am no longer required to give you the minimum sentence, so I'm not going to"? Keep in mind that Pearce doesn't flatly prohibit a longer second sentence, it simply creates a presumption that a longer sentence is based on vindictiveness. That presumption can be overcome, and a change in the law of the type that Foster created could well overcome it.
But, as I said, that only applies to more-than-minimum, maximum, and consecutive sentence. If both sentences fall within the middle range, I think a judge has got to go a good bit farther to justify a higher sentence the second time around than just saying, "You know, reading this presentence report again, I realize you're more of a bad guy than I thought."
From the category of Things I Didn't Need the Newspaper to Tell Me:
Do judges in Ohio's rural counties send certain offenders to prison at a higher rate than judges in larger counties?
The answer -- according to three area common pleas court judges -- is yes.
Actually, I didn't find myself disagreeing with the sentiments expressed in the article as much I thought I would; it's hard to argue with the basic notion that a judge's sentencing should reflect the values of the community. To be sure, the small-county judges who were interviewed admitted they could do this because they weren't swamped with cases like the big counties, and that if the larger counties started meting out similarly stiff sentences, the Ohio prisons would be swamped. (It's sort of a "we can do this because you can't" argument.)
It reminded me of the time I went out to Ashtabula County for an arraignment a long time ago. It was my first time there, and while waiting for the arraignments to start, I sat through a plea hearing. I've never seen a plea hearing like that, before or since: the whole thing took over a half hour, with the colloquy on the defendant's rights taking up a good twenty minutes. As I sat there listening to the judge explain the right against self-incrimination in such detail that the defendant could have passed the criminal law question on the bar exam, I thought, "Geez, this must be a really big case."
Turns out it was a theft prosecution. The defendant was a truck driver, carrying a load of goods from Cleveland to Boston. The truck had broken down right outside Ashtabula, he'd called his boss, and the boss told him to fix it and he'd reimburse him later. Just like he'd told him the last three times the truck had broken down, but he'd never gotten around to reimbursing the guy. So the driver simply sold enough of the goods to pay for the repairs, then continued on to Boston. He spent two months in jail before he worked out a plea deal.
To the indictment.
As you may have gathered, I do a lot of appellate work, and that often results in me coming across cases which aren't necessarily recent, but that deal with situations which criminal attorneys tend to encounter from time to time. I did a brief this past week which dealt with a whole smorgasbord of somewhat off-beat issues, so in the interests of solidarity and brotherhood, I'm passing them on.
The police find four different kinds of drugs in a house, along with a couple of guns. The defendant is convicted of the drug counts, each of which carries a firearm spec. Do the specifications merge? Yep; under RC 2914.14(D)(1)(a), the court "shall not impose more than one prison term on an offender [for a firearm specification] for felonies committed as part of the same act or transaction." The Supreme Court defined "same act or transaction" back in 1994 as "a series of continuous acts bound together by time, space, and purpose, and directed toward a single objective." It's important to understand that the test here is different from the "separate animus" test used for determining offenses of allied import. For example, a defendant who fired fourteen shots in rapid fashion at three different houses could be convicted and sentenced on three different counts of felonious assault, but only one firearm specification.
Speaking of firearm specifications, what happens if the police search a house while the defendant's not present and find drugs and a gun; is he still subject to the firearm spec? This one's trickier. A lot of courts discuss the subject in the context of whether the defendant "constructively possessed" the weapon, but the firearm specification, unlike the drug abuse statutes, doesn't use the word possession: the defendant has to have the weapon "on his person or under his control." There's a halfway decent case out of the 8th District a couple years back, in which the court affirmed a conviction on a firearms specification where the police found cocaine and a gun in a car in the garage, while defendant was arrested in the house. They do discuss several cases which state that there has to be some proximity between the defendant and the weapon. That's probably about as good as you're going to do.
Every now and then, judges try to speed things up a bit too much, like, in the case I just did, by combining the hearing on the motion to suppress with the trial. That's a no-no. Rule 12 specifically says that a motion to suppress (or any other motions filed under 12(C) "shall be determined before trial." There's not much recent law on the subject -- the original case on it is almost forty years old, but as this case points out, "the plain language of the rule does not vest the trial court with any discretion as to when such motions are determined." It's not a technical point, either; a defendant is substantially prejudiced by combining the two, because while he has the right to take the stand in a motion hearing for the limited purpose of contesting the search, if he takes the stand at trial, it's open season.
Last, I ran across a nice decision on third-party consents in searches. In my case, simple situation: the police go to my client's father's house, and the father says that his son sometimes stays on the second floor. The police get the father's signed consent to search the second floor, go up there, and find it's padlocked, so they break the locks and discover a marijuana grow room. Pretty much the exact same thing happened last year in State v. Grodnoshnka, and the 8th District upheld the granting of the motion to suppress. What's important to remember in third-party consent searches is that there are really two aspects: actual and apparent authority. If the third party has actual authority to consent, that's sufficient, but even if he doesn't, consent is still valid if the police could reasonably believe that he had the authority. The court does a nice job summarizing the law on that, and concludes that the fact that the rooms were padlocked and the father didn't have a key made it unreasonable for the police to believe that the father had authority to consent to the search.
Another attempt to avoid the consequences of the "open and obvious" doctrine came to naught in the 6th District this past week, in Black v. Discount Drug Mart. Ms. Black was the victim in what is apparently happening with astonishing frequency in stores throughout Ohio: unsuspecting customers tripping over pallets of merchandise that have been left sitting in the aisles.
In Ms. Black's case, she turned the corner of the cosmetics counter and promptly fell over a red plastic bin which was filled with merchandise for restocking the store shelves. Her case got bounced on summary judgment, despite her arguing the "active negligence" exception to the open and obvious doctrine.
What's that? It stems from a 10th District case in 2005, Simmons v. Am. Pac. Enter., where a truck driver had pulled into a dock to unload merchandise. One of the employees put a dock plate to cover the gap between the truck and the dock. When the driver had finished unloading, he stepped backwards to return to the truck, thinking that the plate was still there. It wasn't -- the employee had removed it. The driver sued, got summaried out, but the appellate court reversed, drawing a distinction between "static conditions" and "active negligence":
The distinction between a static and dynamic forms of negligence is legally significant, as it directly correlates to the two separate and distinct duties an occupier owes its business invitees: (1) static conditions relate to the owner's duty to maintain its premises in a reasonably safe condition, including an obligation to warn its invitees of latent or hidden dangers, while (2) active negligence relates to the owner's duty not to injure its invitees by negligent activities conducted on the premises.
The Simmons court acknowledged the amount of time elapsing between the act of negligence and the plaintiff's injury could be significant, and that's what the Black court hung its hat on in affirming summary judgment:
In the present case, unlike the dock plate in Simmons, there was no evidence that the bin had not been present in the aisle for a substantial amount of time. It had become a static condition. It was not a changing condition during appellant's visit to the store.
Of course, this presents another issue: given that the store was the one moving for summary judgment, and that it had superior access to information concerning when the bin was placed there, shouldn't it have had the burden of proving that the bin had been there a sufficient period of time to constitute a "static condition"?
This, of course, reveals the problem with the Simmons court's reasoning: The entire rationale for the open and obvious doctrine is that the landowner has no duty to warn an invitee of conditions which are clearly observable, so why should it matter whether the landowner has "actively" created those conditions? Plus, given that the vast majority of cases arise where the owner has indeed created the conditions, why should it matter when the condition was created? What's the justification for imposing liability when the employee put the bin there two minutes before the plaintiff came around the corner, and relieving the owner of liablity where the employee left it there for three hours?
Despite the defects in the reasoning, Simmons is a good case for plaintiffs to have, at least until that happy day arrives when the Ohio courts listen to me and decide they're going to get rid of the open and obvious doctrine and go back to using comparative negligence, as I suggested here.
Don't hold your breath.
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