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 19^th to 24^th.

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 in State 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.

That seems to be a serious misreading of the case law.  The court took note that the Supreme Court had refined Pearce in Wasman v. US and Alabama v. Smith:

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.