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June 2007 Archives

News for Appointed Counsel

Just when you thought it was safe to go back into the water...  So this morning I check my email, and there's a few letters that have gotten through my spam-blocker, promising me instant wealth or a larger penis or all the xanax I need -- and, thanks anyway, but if I have the first two I won't be needing the third -- when I come across one from CPMKE@cuyahogacounty.us.  It had a memo attached, which you can read here.  Basically, if you get appointed on a criminal case, you have to submit a certification -- like this one -- when you submit bill if it's more than $500. 

What's it all about, Alfie?  Well, it seems that the state legislature passed a law, RC 3517.13, prohibiting state agencies from awarding contracts to persons who've given more than $1,000 to the holder of the office who's responsible for awarding the contract, either within the two years before the contract is awarded, or within a year after.

Now, this isn't going to affect me, because the chances of my giving a judge -- or anyone else, for that matter -- a campaign contribution of $1,000 are slim and none, and Slim just rode out of town.  On the other hand, the law is written so that contributions are conglamerated, not only on an individual basis, but on a group basis is well: if you give $250 five times, that's the same as giving $1,250, but if you and each of your four partners gives $250, that's the same as each of you giving $1,250.  And that means that the judge you gave it to can't you assign you a case involving more than $500.

Maybe.  But maybe not, because you'll notice that the sections which impose the certification requirement also specify that they're "subject to divisions (K), (L), (M), and (N) of this section," and division (M) provides

(1) Divisions (I) and (J) of this section do not apply to contracts awarded by the board of commissioners of the sinking fund, by the supreme court or courts of appeals, by county courts consisting of more than one judge, courts of common pleas consisting of more than one judge, or municipal courts consisting of more than one judge, or by a division of any court if the division consists of more than one judge. This division shall apply to the specified entity only if the members of the entity act collectively in the award of a contract for goods or services.

I'm checking with the court administrator's office now to see whether this does indeed apply to us.  In the meantime, make sure to include the certification with fee bills over $500 starting on Monday.

Continue reading "News for Appointed Counsel" »

The War on Bong Hits

Bong HitsThe safety and welfare of the Republic was further ensured last week by the Supreme Court's decision in the famous "Bong Hits" case, Morse v. Frederick, in which a group of students had unfurled a banner, as shown at left, during a school outing to watch the Olympic Torch relay.  The outraged principal had immediately demanded that it be taken down, and all but one student had complied.  He wound up being suspended for ten days.

As students are wont to do these days, he filed a suit for violation of his civil rights.  The district court dismissed it on summary judgment, but the 9th Circuit reversed, holding that the school had failed to show that the banner was sufficiently "disruptive" of school activities so as to warrant disciplinary action.

The Supreme Court this term has issued opinions in 19 cases arising from the 9th Circuit.  It has reversed in 17 of them.  This wasn't one of the lucky two.

Chief Justice Roberts wrote the opinion for the 5-4 majority -- joined, as you might guess, Scalia, Thomas, Kennedy, and Alito -- upholding the school's actions.  Breyer wrote an opinion concurring in the judgment, but on the grounds that the Court didn't need to reach the 1st Amendment issue, and dissented from the opinion on that basis.  Ginsberg, Stephens, and Souter of course dissented.  Thomas concurred in an opinion expressing his belief that the 1st Amendment didn't apply to students at all.

This all started, of course, with Tinker v. Des Moines, the 1968 case in which the Court had upheld students' rights to wear black armbands as an expression of opposition to the Vietnam War, finding that student expression couldn't be suppressed unless it would "materially and substantially disrupt the work and discipline of the school."  That was the high-water mark of student freedom, though; the Court backed off that test the next time it confronted the issue, 18 years later, in Bethel School District v. Fraser.

Fraser involved a student's speech to an assembly, in which the student employed what the Court called an "elaborate, graphic, and explicit sexual metaphor."  (Similar to what can be found on any episode of Friends during its last few seasons.)  The Court had little trouble upholding the school's suspension of the student, although, as Roberts confesses in the Bong Hits case, "the mode of analysis employed in Fraser is not entirely clear."  Clear enough, apparently, for the majority in Morse to distill two basic holdings from Fraser:  first, that "the constitutional rights of students in public school arenot automatically coextensive with the rights of adults in other settings," something that not even Tinker had disputed, and second that Tinker's "substantial disruption" requirement was DOA.

What's particularly interesting about Morse is the Court's handling of the drug issue.  After rejecting the dissent's claim that the banner was mere "gibberish," the majority concludes that it was actually advocating drug use.  Roberts' explanation for this conclusion borders on the hilarious:

At least two interpretations of the words on the banner demonstrate that the sign advocated the use of illegal drugs. First, the phrase could beinterpreted as an imperative: "[Take] bong hits . . ."--a message equivalent, as Morse explained in her declaration, to "smoke marijuana" or "use an illegal drug." Alternatively, the phrase could be viewed as celebrating druguse--"bong hits [are a good thing]," or "[we take] bonghits"--and we discern no meaningful distinction between celebrating illegal drug use in the midst of fellow students and outright advocacy or promotion.

The opinion then veers off into a discussion of why "deterring drug use by schoolchildren is an 'important -- indeed, perhaps compelling' interest," in terms vaguely reminiscent of the 1950's "demon weed" drug-ed movies

Somewhat puzzling is the majority's conclusion that "this is plainly not a case about political debate over the criminalization of drug use or possession," but about restricting speech that "is reasonably viewed as promoting illegal drug use."  I say "puzzling" because I don't sense that the majority would have come to a different conclusion if the kids had held up a sign saying "Legalize Drugs."

Perhaps Justice Alito would, because his concurrence, in which Kennedy joined, starts this way:

I join the opinion of the Court on the understanding that (a) it goes no further than to hold that a public school may restrict speech that a reasonable observer would interpret as advocating illegal drug use and (b) it provides no support for any restriction of speech that can plausibly be interpreted as commenting on any political or social issue, including speech on issues such as "the wisdom of the war on drugs or of legalizing marijuana for medicinal use."

Superficially, that's a narrower base than the majority's opinion adopts, and thus Alito's views are controlling.  But the same inconsistency exists:  doesn't advocating drug usage implicity carry a message about "the wisdom of the war on drugs"?  What's the distinction?

This might be one of those cases that's hailed in conservative circles, only to come back to haunt them later.  Earlier this week, as this story tells us, a student was disciplined for wearing a t-shirt that said "homosexuality is shameful."  Could the school ban this on the grounds that a "reasonable observer would interpret it" as advocating hostilitity toward homosexuals, or is it permissible on the grounds that it can be "plausibly interpreted" as commenting on the wisdom of homosexuality and its behaviors?

Stay tuned.

Continue reading "The War on Bong Hits" »

PRC and pleas

I'd mentioned a couple of months back that many courts, the 8th District for one, have been very particular in demanding that trial courts advise defendants of post-release controls during plea hearings; generally, they've held that failure to completely advise the defendant of post-release controls voids the plea.  An appellate lawyer came up with an interesting twist on that argument last week in State v. Reed

The case is straight out of Bad Decisions, Volume 36.  Reed was charged with burglary, a 2nd degree felony.  The state offered to drop it down to a 4th degree felony, pretty much of a sweetheart deal.  The judge even brought Reed into the courtroom, and explained that if he took the deal, he could only get a maximum 18 months, versus the 8 years he was looking at if he went to trial and was convicted.  Reed acknowledged that his attorney had told him the same thing, but he insisted on going to trial anyway.  You've seen this movie, and you know how it ends:  Reed was convicted of the burglary, and the judge gave him six years.

On appeal, Reed's attorney urged that the judge's failure to inform Reed of post-release control rendered Reed's rejection of the plea offer "unknowing and unintelligent."  The "unintelligent" part was pretty much of a given.  As for the unknowing part, the defense acknowledged that the judge was under no obligation to inform him of the consequences of rejecting the state's plea offer, but since the judge had voluntarily assumed that obligation, he had the duty to inform Reed of post-release controls as well.

The 6th District didn't buy it, needless to say, finding that while Criminal Rule 11(C) requires a trial judge to inform the defendant of various rights and penalties before accepting a plea of guilty, it has no such obligation when the defendant pleads not guilty.  Plus, the court rightly noted,

Appellant openly insisted on risking the possibility of an additional 78 months incarceration and preserved his right to a jury trial. Even if the trial judge had informed appellant of post-release control issues, there is no reason to believe that appellant would have decided any differently.

While we're on the subject of post-release controls, the 6th District also had a reminder last week in State v. Holt that the failure of the trial court to mention post-release controls in both the sentencing entry and in the sentencing hearing means that the controls weren't properly imposed, and the defendant has to be resentenced.  If he's not, then the imposition of post-release controls isn't valid.

Continue reading "PRC and pleas" »

Rita v. US

The Supreme Court's long-awaited decision in Rita v. United States finally came out last week.  Rita was the Court's first Federal sentencing decision since it declared the Federal Sentencing Guidelines advisory in Booker v. United States back in 2005.  That decision, needless to say, caused a tumult in Federal sentencing, particularly with regard to the question of what role the Guidelines should continue to play.  The fear was that the Guidelines, while now "advisory" in theory, were still viewed as mandatory in practice; that fear has only grown with the experiential realization that, since Booker was handed down, not a single within-Guidelines sentence has been reversed by a circuit court.

The Federal courts of appeals have far more power to review sentences than do Ohio courts by comparison, and Rita was supposed to establish some parameters for that power.  In Booker, the Court had declared that the appellate courts could still review a sentence for "reasonableness," and the specific question in Rita was whether a sentence within the Guidelines is presumptively reasonable.  As anticipated in most quarters, the Court held that it was, by an 8-1 vote, with only Justice Souter dissenting.  In fact, the Court didn't even go that far, holding merely that a circuit court could employ that presumption, not that it had to.

While the Court stressed that this was a "nonbinding" presumption on appeal, rather than a presumption the district court should employ in determining the sentence, it's hard to see how that's going to make much difference in real life.  Justice Breyer's opinion for the Court spends a fair amount of time talking in laudatory terms about all the research that went into the Guidelines.  In recent years, some courts (and defense counsel) have argued that the sentencing provisions of 18 USC 3553, and especially that section's "parsimony provision" -- that a sentence should be "sufficient, but not greater than necessary" to achieve the section's purposes -- offers in itself a basis for variance from a Guidelines.  Breyer, though, cuts that argument off at the knees by concluding that "the Guidelines, insofar as practicable, reflect a rough approximation of sentences that might achieve §3553(a)'s objectives."  In other words, don't bother looking at 3553, because the Guidelines already take that into consideration.

As I'd mentioned in the past few weeks, Rita was supposed to be decided along with Claiborne v. US, which presented the flip side of the question:  whether a sentence outside the guidelines was presumptively unreasonable.  That case died with Claiborne, who was killed a month ago in a botched robbery attempt, but the Court has granted cert in a case presenting the same question, and that decision will come out next year.  If the Court finds for the government in that one, too, then it's hard to see how a fiction that the Guidelines are merely advisory can be maintained.  If a district judge knows that a within-guidelines sentence will be reviewed on the presumption that he did the right thing, and a sentence outside the guidelines will be reviewed on the presumption that he did the wrong thing, that's going to be a powerful incentive to choose a within-guidelines sentence.  As Justice Souter noted in his dissent:

What works on appeal determines what works at trial, and if the Sentencing Commission's views are as weighty as the Court says they are, a trial judge will find it far easier to make the appropriate findings and sentence within the appropriate Guideline, than to go through the  unorthodox factfinding necessary to justify a sentence outside the Guidelines range.

At any rate, the opinion is a lot more involved than the cursory treatment I've given it here.  As always, Doug Berman, over at the Sentencing Law & Policy blog, is the go-to guy on sentencing issues.  He's got some interesting and thought-provoking comments on Rita here, here, and here.  And I'm sure he'll have more.  If you do a lot of Federal criminal work, this is stuff you should be reading.

Continue reading "Rita v. US" »

Case Update

Although there was nothing of significance in the Ohio Supreme Court this week, there were some interesting decisions from the US Supreme Court and 6th Circuit Court of Appeals on criminal questions.  I'll discuss them tomorrow.  Meantime, in the courts of appeals...

The 1st District concludes that minor-misdemeanor disorderly conduct is a lesser-included offense of assault, but the 4th-degree misdemeanor disorderly conduct is not, because it has the additional element of persisting in the conduct.  There are a couple of districts -- the 10th and 2nd -- which hold that either degree of disorderly conduct is not a lesser-included of assault.  The 8th District would probably agree with the 1st on this; a couple of years back, they held that the minor misdemeanor was a lesser-included of domestic violence, but the 4th degree misdemeanor was not, for the same reason....  The 1st District also did something you don't see very often:  it reversed a trial court's denial of a motion to withdraw a guilty plea, finding that the trial court concentrated too much on the fact that the plea had been knowingly made, and not enough on the reasons for allowing withdrawal. 

The 6th District affirmed the trial court's grant of a motion to suppress, holding that a homeowner's consent to search his house didn't extend to a backpack left there by another person....  The 8th District holds that a kidnapping conviction should have merged with an aggravated robbery conviction; the case has a good discussion of the "separate animus" requirement for allied offenses.

Some civil stuff:  the 8th District continues the line of cases holding that a union employee does not have a right to claim wrongful discharge in violation of public policy, because his remedies for discharge are specified in the union contract....  And the 8th also gives a pointed -- and painful -- reminder that voluntary dismissals are self-executing.  Summary judgment on been granted against their client on one of his claims, and he filed a voluntary dismissal of the other claims on June 29, 2006, so he could appeal.  The court journalized the voluntary dismissal on July 10, and he appealed on August 9.  Too bad; the dismissal becomes effective upon filing, not acceptance by the court, and the appeal wound up being dismissed for lack of jurisdiction....  The 12th District affirmed a trial court's grant of a civil protection order for a mother and child against the father, despite an Illinois order giving the father visitation rights, because the child had never lived in Illinois and thus that state's order wasn't entitled to full faith and credit.

Last, one more cautionary note, again out of the 8th District:  don't assume that a late filing of an answer will be automatically accepted.  That's what the lawyer figured in a case with the ungodly name of Ear v. Phnom Penh, and he got hammered for it.  Civil Rule 6(B)(2) requires a showing of "excusable neglect" for a late filing.  While this is less stringent than the showing under 60(B)(1), you still have to demonstrate something.  The first time the lawyer filed it, he didn't specify anything, and when the judge called him on it, he put something together which wasn't quite true or helpful to his situation:  he claimed that he'd been come on the case only recently, when in fact he'd been retained two months earlier, and asserted that he couldn't check service because the Internet in his office was down.  Boo hoo.  The judge threw out his pleading and gave the plaintiff a default judgment, and the appellate court affirmed.

Continue reading "Case Update" »

Crawford, Stahl, and Siler: Part II

Yesterday we talked about the Ohio Supreme Court's forthcoming decision in State v. Siler, which was argued a couple of weeks ago.  Siler involves the statements of 3-year-old Nathan Siler to a police officer investigating his mother's death; the court of appeals reversed the conviction of the defendant -- the boy's father -- on the basis that Nathan's statements were "testimonial," and their admission at trial violated the defendant's rights under Crawford v. Washington.

I watched the oral arguments on the Siler case (you can, too:  you can find the case here, under the June 5, 2007, date; you'll need RealPlayer).  There are three basic ways the Court could go.

Follow Stahl:  In Stahl, the Court keyed on Crawford's definition of a testimonial statement as one made "under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial," and expanded on that by holding that "courts should focus on the expectation of the declarant at the time of making the statement; the intent of a questioner is relevant only if it could affect a reasonable declarant's expectations."  As I mentioned yesterday, the Court didn't really explain why the expectations of the declarant should control the question of admissibility, and the problems inherent in that formulation become manifest in Siler:  while one might debate whether the victim in Stahl expected her statement to be used at trial, there's no question that Nathan Siler had no idea what a trial was, let alone gave any thought to whether his statement would be admitted at one.

Needless to say, that's the stance the prosecutor urged the Court to adopt, and in fact went further:  she urged that the age of the child should play an important role in making that determination, sort of a "de facto" rule that a child under a certain age was inherently incapable of giving a testimonial statement.  Where this would wind up going was posed in a question by Justice O'Connor:  what about an adult who was mentally retarded?

And this is where it all unravels.  It's bad enough that you're trying to divine a person's expectation; now you're trying to define their ability to formulate those expectations.  It may well be that a child of five or six (or even three or four) has no understanding of how the judicial process works, but many have an understanding of right and wrong, and the concept of consquences and punishment.  If they know that if they say somebody did bad things, that person will be punished, isn't that the functional equivalent of believing that the statement "would be available for use at a later trial"?

What's more, it's going to be a lot harder this time to reconcile Stahl's holding with the more objective test employed in Davis and Hamdan.  In Stahl, the Court distinguished those two cases on the basis that they involved statements to police officers, and the statement in Stahl was made to a nurse.  They can't do that with Siler.  That, of course, leads us to the second possible course for the Court to take...

Distinguish Stahl:  In fact, that's exactly what the defense urged in oral argument:  this is different from Stahl.  The defense argued for a flat rule that any statement made in response to a police interrogation about "past facts" is testimonial.  That contention is certainly logical, and results from a fair reading of Davis and Hamman; what's more, it avoids the problem of trying to persuade the court to overrule a decision it made just last year, which isn't going to happen.

The validity of such a distinction isn't so clear, though.  It would obviously mean excluding the child's statements, and it would be difficult to reconcile that result with Stahl: an adult didn't have an expectation that the statement would be used at trial, but a 3-year-old did?  What's more, there are some serious ramifications of that holding as well.  In a child abuse case, does that mean that the "testimonial" issue can be avoided by having a social worker talk to the child instead of the police?  In Davis, the court held that statements to "agents" of the police -- the 911 operator in that case -- were evaluated in the same light as statements to the police themselves.  But it's not difficult to foresee problems with a rigid application of a "police interrogation" model.

Avoid the testimonial question entirely:  This was the escape route offered by Judge Patrick McGrath of the 10th District, sitting in for Justice Cupp, who'd recused himself.  During the prosecutor's argument, McGrath lobbed up a softball question about whether the police officer even knew that he was investigating a homicide, rather than a suicide, when he first talked to the boy.  The prosecutor promptly swatted it out of the park, claiming that the officer was simply trying to determine what had happened.  This, arguably, would remove the "interrogation" aspect from the case, and thus eliminate the whole issue of whether the statement was testimonial.

Obviously, I haven't reviewed the entire record, but there are various comments in the appellate court opinions which seem to undercut that theory:  the garage door had been forced open, the mother's body had bruises, and the officer's questions to the child almost immediately focused on his father.  If the Court did follow this tack, it wouldn't be the first time a court ignored the facts to reach the result it wanted, and it wouldn't be the last.  Still, the facts here are a little too prominent, and the case far too important, to fluff the issue off on that basis.

What should the Court do?  The most important function of an appellate court is to give guidance, to harmonize the law, as much as possible.  The problem with Stahl is the reason that the law rarely employs "subjective" tests:  there's no clear standard to guide the lower courts (or juries) in making their determinations.  Use of an objective standard, especially a "bright-line" test that statements made as a result of police interrogations as to past events are testimonial, would go a long way toward clarifying some of the post-Crawford confusion.

What will the Court do?  I'd bet on a 4-3 decision following Stahl and reversing the 5th District's decision excluding the statements.

Continue reading "Crawford, Stahl, and Siler: Part II" »

Crawford, Stahl, and Siler: Part I

On August 20, 2001, the police went to the home of Barbara Siler, alerted by a call from her father that she hadn't appeared for work.  They found her body hanging in the garage, and her three-year-old son Nathan asleep in his room.  The police officer, who'd received training in interviewing children, took the boy out on the lawn and, over a forty-five minute period, elicited the fact that "Daddy" had come to house and knocked loudly on the door, that "Mommy and Daddy were fighting," and that "Daddy tied something around Mommy's neck."  The police went to the home of Barbara's estranged husband, Brian Siler, and found he had scratch marks on his knuckles and on his chest, near his neck.

Siler was charged and convicted of the murder of his wife.  The officer who'd interviewed Nathan testified to what the boy told him.  The court of appeals upheld the conviction, finding that the child's statements were admissible under the "excited utterance" exception to the hearsay rule.  The Ohio Supreme Court denied review, and that was that.

Until Siler appealed to the US Supreme Court, which vacated the conviction and remanded the case back to the court of appeals for consideration in light of Crawford v. Washington, the 2004 decision which held that admission of out-of-court "testimonial" statements, without the opportunity to cross-examine the declarant, violates a defendant's confrontation rights.  The 5th District took another look at it, decided that the child's statements were testimonial, and reversed the conviction.

The case is now before the Ohio Supreme Court, and promises to provide an interesting followup to the court's first foray into post-Crawford jurisprudence last summer in State v. Stahl.  In Stahl, the Court upheld the admission of a rape victim's detailed statement to a nurse in a rape crisis unit, keying on Crawford's definition of a testimonial statement as one "made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial."  According to the slim 4-3 majority, the victim made the statement in the "reasonable belief" that it was for purposes of medical diagnosis and treatment, not for use at trial; this despite the fact that a policeman took her to the nursing unit and sat in the room during the entire interview, that the form she signed before giving the statement specifically indicated that the information she gave "would be used in the investigation and prosecution of this crime," and that no medical treatment was provided.

In addition to the questionable result, Stahl's focus on the expectation of the maker of the statement as determinative of whether it was testimonial presented some additional problems.  First, it contemplated a binary process -- either the maker of the statement expected it to be used at trial, or expected it to be used for some other purpose -- with no explanation of why that should be true; why couldn't the maker anticipate that it would be used for both?  Nor does the case provide any explanation of why the expectation of the maker should be determinative.

Indeed, that formulation seemed to run counter to the US Supreme Court's follow-up to Crawford.  In the summer of last year, it decided two companion cases, Davis v. Washington and Hammon v. Indiana.  In both cases, the police had responded to a domestic violence call.  In Davis, the court held that the victim's statements to the 911 operator weren't testimonial, because they were made in response to an ongoing emergency.  In Hammon, the court held that the victim's statements in response to the officers' questioning, after they'd arrived and separated the parties were testimonial, because at that point the emergency had ceased and the police were simply attempting to gather information on past events.  But perhaps the most significant part of the opinion was Justice Scalia's formulation of what constituted a "testimonial" statement:

Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.

To be sure, Scalia acknowledged that the definition wasn't intended to be exhaustive.  Still, it's hard to square that with Stahl's syllabus:

In determining whether a statement is testimonial for Confrontation Clause purposes, courts should focus on the expectation of the declarant at the time of making the statement; the intent of a questioner is relevant only if it could affect a reasonable declarant's expectations.

Although that discrepancy was easy to pass off in Stahl -- the Court distinguished Davis and Hammon on the basis that those involved statements to the police, while Stahl involved a statement to a nurse -- it can't be dismissed on a similar basis in Siler.  In fact, as was clear in the oral arguments on Siler two weeks ago, Siler reveals the central problem in Stahl:  the expectations of the declarant are supposed to determine whether or not a statement is testimonial, but no one could seriously contend that 3-year-old Nathan Siler ever contemplated what use would be made of what he told the police officer that afternoon on the day his mother died.

Tomorrow we'll discuss how the arguments went in Siler, and what the Court might do with the case.

Continue reading "Crawford, Stahl, and Siler: Part I" »

Car searches and probable cause

Sometimes I think that the easy answer to the question, "How does the 4th Amendment apply to car searches?" is, "It doesn't."

That's a bit cycnical, but you'd be excused from coming to that conclusion after reading the 8th District's decision last week in State v. BeaversBeavers had decided to spend the night with his girlfriend at the house she shared with her brother and mother.  Unfortunately, the brother apparently was a drug dealer, and when the police executed a search warrant, they found drug paraphernalia throughout the house, and some marijuana under the bed Beavers and the sister were sleeping in.  They found Beavers' car parked illegally outside, and a quick flashlight scan of the interior showed marijuana and some joints lying on the console.  The police squad's drug-sniffing dog with the definitely-not-man's-best-friend name of "Boss" alerted to the vehicle.  After obtaining Beavers' keys, the cops found ammo in the glove compartment and a gun in the trunk, leading to Beavers' prosecution for having a weapon under disability.

Beavers raised a number of objections to the search, including his arrest inside the house, but the court ignored that and focused on the search of his car.  Rightly so; whether Beavers was properly arrested, or even whether his car was illegally parked, was irrelevant -- case law holds that there's no constitutional barrier to the police shining a flashlight into a car, and the question then became what could the officers do after they saw marijuana in the car.

Quite a lot, actually.  There's also a bunch of cases which hold that observing marijuana in a vehicle gives probable cause to search the vehicle.  That includes the trunk; back in 1982, in US v. Ross, the US Supreme Court held that probable cause to search a vehicle under the automobile exception to the warrant requirement allowed the search to extend to everything that a warrant would have permitted:  an officer may search the entire vehicle, and any containers in the vehicle, which could contain the item for which cause exists to search.

Actually, Beavers gives a good demonstration of how screwed up search and seizure law is in this area.  Just last year, in State v. Farris, the Ohio Supreme Court held that the officers' detection of the smell of burnt marijuana in a car couldn't justify a search of the vehicle's trunk.  (I discussed Farris here.)  This, despite the fact that just six years earlier, in State v. Moore, they'd held that the smell of marijuana did give probable cause to search the vehicle, and the Farris court makes no effort to explain why Ross and Moore should shouldn't be read to allow a search of the trunk in that situation.  In fact, Farris relies primarily for that on an Ohio Supreme Court decision which holds that a search of the trunk can't be conducted pursuant to an arrest, but that's not the same thing.  A search incident to an arrest of an automobile driver or passenger is limited to the interior of the automobile, but searches incident to arrest have always been much more limited:  you can't search the trunk of a car under those circumstances for the same reason that you can't search the upstairs bedroom simply because you arrest someone in his kitchen.

The Beavers court distinguished Farris on the basis that the case there involved the smell of burnt marijuana, while here it involved the actual discovery of the contraband.  Arguably, the court overlooked the question of whether finding "contraband" which does not even constitute an arrestable offense -- possession of less than 100 grams of marijuana is a minor misdemeanor -- creates probable cause to search the car.  Then again, the court noted that an inventory search of the vehicle would have discovered the weapon, and search of the trunk is permissible for an inventory search.

I'm not the most enthusiastic supporter of expanded rights to searches, as you might have gathered, but I can understand the frustration of police officers with all this.  I make a fair part of my living studying this stuff, and it can take a while to sort all of it out.  How cops do it in the couple of seconds or minutes they have to make a decision is beyond me.

Continue reading "Car searches and probable cause" »

Supreme Court update and other stuff

Although most states, including Ohio, give a passenger standing to assert the illegality of a stop of the vehicle, a few states don't.  California joined them last year.  The case involved a stop of a vehicle to check the registration, the state admitting that there was no basis for the stop.  Drugs had been found on the passenger, though, and the California Supreme Court narrowly upheld his search, saying that he was free to leave after the stop, and therefore wasn't "seized" for 4th Amendment purposes. 

Yesterday, the US Supreme Court unanimously reversed that determination in Brendlin v. California.  The reversal was widely predicted, so it didn't come as much of a surprise.  And if you're a passenger in a vehicle that's pulled over, you exit the vehicle, give the nice police officers a friendly wave and say, "I guess this is my stop," and stroll off, it shouldn't come as much of a surprise if they beat you stupid with their truncheons.  I have no idea what the California court could have been thinking on this one.

The spate of unanimous decisions, though -- there were five last week -- shouldn't obscure the fact that the Supreme Court is much more narrowly divided, especially in the area of criminal decisions.  More typical was the decision in Bowles v. Russell, a case with a local flavor.  A Cleveland attorney had intended to appeal from a habeas denial here in Federal court, and the judge put on his entry denying relief that the appeal had to be filed within seventeen days.  Turns out that the rules provide for only a fourteen-day period, and the 6th Circuit dismissed the appeal on jurisdictional grounds.  The Supremes affirmed that last week by a 5-4 vote, over Justice Souter's dissenting observation that, "It is intolerable for the judicial system to treat people this way." 

In fact, Professor Dorf over at the blog Dorf on Law posits the theory that we're seeing the "Karl Rovification of the Supreme Court."  Rove is famous for his theory that winning elections depends not on reaching out to the center but on maximizing the support of the base.  (How's that working for you now, Karl?)  Dorf suggests that, similarly, when the four conservative justices -- Scalia, Thomas, Roberts, and Alito -- can corral Kennedy, they don't care what Souter, Ginsberg, Breyer, and Stevens think.  There's no longer any effort to reach a consensus, but merely to grab the five votes necessary to form a majority.

In that light, Jeffrey Toobin wrote an article for the recent New Yorker which does a good job of pointing out the political stakes in the presidential election next year:

At this moment, the liberals face not only jurisprudential but actuarial peril. Stevens is eighty-seven and Ginsburg seventy-four; Roberts, Thomas, and Alito are in their fifties. The Court, no less than the Presidency, will be on the ballot next November, and a wise electorate will vote accordingly.

Continue reading "Supreme Court update and other stuff" »

Case Update

I'd talked about the US Supreme Court decisions earlier in the week.  As most lawyers know, Monday is the day that opinions are announced, and there are a number of big ones left in the term.  I'll discuss any that are announced today later in the week.  The Ohio Supreme Court didn't have any major decisions last week, unless you count In re SJK, in which the court held that payment of a traffic fine didn't moot the case for appeal purposes, since the imposition of points on the drivers license constituted a collateral disability which preserved the case for review.  So that's good news if a lot of your practice is dependent on appeals of traffic cases.  And if a lot of your practice is dependent upon traffic case appeals, you could probably use some good news.

Can a defendant be convicted of a carrying a concealed weapon with ammunition at hand -- a felony -- if he has the gun and the codefendant next to him has the ammo?  The 1st District says yes.  It also affirmed summary judgment for an employer in a sexual harassment case, although acknowledging that the offending employee's acts were "creepy."  Those acts included placing a condom on the desk of a female employee, apparently in heed of the observation that not all poems are written with the pen. 

Rara avis: the 2nd District reverses a conviction for ineffective assistance of counsel in failing to object to a hearsay statement.  It also rules that the one-year limitations period in a defamation case begins to run from date of publication, not the date when the plaintiff discovers the defamation. 

Around here, the 8th District affirms summary judgment in another slip-and-fall case, holding that the open and obvious doctrine isn't defeated by a claim that the color of steps and floor were uniform, making the steps harder to pick out.  The 9th District holds that the trial court's failure to instruct on an element of a crime -- in this case, the intent to commit an offense, the last element of burglary -- is not a "structural error"; if the defense doesn't object, it's analyzed under the plain error standard. 

Last, if you're going to base your appeal of your conviction of a drunk driving conviction on the basis that there was no evidence at trial that you were the one that the cop actually arrested, it's probably a good idea if your attorney hasn't asked the officer questions like, "That would have been after you already arrested my client, after you made a decision in your mind that he was under the influence of alcohol, correct," "After you stopped my client you go up to the vehicle and at that point you have personal contact with him, is that correct," and "When you asked my client to perform these field sobriety tests, uh, he had a legal right to refuse, he did not have to do these tests for you, did he?"

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Punishing the mentally ill

The nexus between criminality and mental illness has been the subject of discussion for years, with recent estimates indicating that as many as a quarter of the prisoners in state and federal facilities suffer from some mental disorder.  That was reemphasized a couple of weeks ago by the indictment of Timothy Halton for the murder in May of Cleveland Heights Police Officer Jason West; Halton had a history of psychotic behavior, and had recently stopped taking his medication.

What to do about all this has befuddled legislators, courts, and penologists.  The 8th District took a stab at the issue last week, with uneven results.

Back in the summer of 2004, Linda Castrataro was charged with three counts of felonious assault against a police officer, one of vandalism, and one of failure to comply, what used to be called "fleeing and eluding."  She had a history of mental illness -- she would soon be declared incompetent by the probate court -- and the court referred her for evaluations for sanity and competency.  In February, she pled guilty to the failure to comply and one count of felonious assault without the peace officer spec, and a month later the judge put her on probation, with strict conditions, including placement in a group home.  Two months after that, the court referred her for an evaluation for eligibility for civil commitment, but included the wrong statute in the order:  instead of specifying RC 5122.15, the order specified 2945.40, which is the statute for referral for evaluation of sanity and competency.

Nonetheless, a report was prepared, and in June of 2005, the court found her to be a mentally ill person subject to civil commitment, and ordered her hospitalized at the Northcoast Behavioral Facility.  The civil commitment statutes, though, specify that the "least restrictive" housing alternative be used, and a month later the Mental Health Board reported that the least restrictive alternative would not be hospitalization, but supervised housing.  The judge went along, and ordered defendant transferred to Sally Ann Adult Care.  In November, the defendant skipped out, and was later found in a hospital in Atlanta.  She was extradited back to Ohio, and the judge found her to be a probation violator, terminated the community control sanctions, and imposed a three-year prison sentence.

The defendant appealed to the 8th District, urging that in light of the defendant's mental illness, "the sentence was cruel and unusual under the Eighth Amendment and a violation of appellant's due process rights."  In its decision, the court spends not a word discussing that issue, instead focusing on the fact that the trial court used the wrong statute in its referrals for psychiatric evaluations.  The court also determined that the record contained "no expert medical reports or evaluations," although this apparently because no evaluation was included in the record, not that no evaluation was done:  the docket entry of June 28 specifically indicates that the parties stipulated to the report of a Dr. Radio.  Here's the money quote from the court's opinion:

We are aware of, and sensitive to, the special attention that need be paid mentally ill offenders and the rehabilitative role the criminal justice system should play in this often misunderstood scenario. Appellant deserves the right to a determination, through the proper legal procedures, of whether she would benefit from treatment that can be provided outside the penal system. Accordingly, we instruct the trial court to obtain a psychiatric evaluation of appellant from the Cuyahoga County Mental Health Board pursuant to R.C. 5122.01 et seq., and remand this case for a civil commitment hearing based on the findings of the evaluation.

The problem here isn't only that the trial court's record clearly indicates that it did conduct a civil commitment hearing, and issued a comprehensive order tailored to the findings of that hearing.  What does the appellate court mean when it says that a defendant "deserves the right to a determination... of whether she would benefit from treatment... outside the penal system"?  That you can't send a mentally ill person to prison unless you hold a civil commitment hearing?  That civil commitment, if found applicable, is the preferred solution to prison?  Where does the "rehabilitative role" of the criminal justice system figure into all this, in comparison to the other goals of the system, like deterrence, punishment, and protection of the public?  As the Halton case indicates, the civil commitment system is hardly a failsafe vehicle for achieving that latter goal in particular.

The court's decision is obviously of interest to anyone who's representing a mentally ill defendant.  Exactly what it means isn't at all clear, and it's going to be interesting to see how it plays out over time.

Continue reading "Punishing the mentally ill" »

Catching up

Today we'll just update some things I've commented about in the past, and comment on some other stuff I came across, so that six months from now I can write a post updating them...

A while back I mentioned the case of Genarlow Wilson, an 18-year-old Georgia youth who'd received a 10-year prison sentence for having consensual sex with a girl two years younger.  She was fifteen at the time, which made it statutory rape, normally punishable by a maximum one-year sentence, but since this wasn't "normal" sex -- i.e., vaginal intercourse -- it was aggravated statutory rape, making it subject to a 10-year sentence.  Which is what Genarlow got.  He's done two years of it, and the absurdity of the case has been commented on in detail, and even led to an ESPN special.  On Monday, a Georgia judge freed Wilson, amending the crime to a misdemeanor while stating that "If this court or any court cannot recognize the injustice of what has occurred here, then our court system has lost sight of the goal our judicial system has always strived to accomplish ... justice being served in a fair and equal manner."   

The state immediately appealed.

And here's a hypothetical case from Tortdeform.com, a blog devoted to lampooning the arguments of the tort reform crowd:

A 79 year old man tripped while trying to step onto a foot-high platform.  He fell and hit his head and leg, but was able to give a speech and leave on his own.  He has minor surgery and some physical therapy.  A year after his injury, he sues the restaurant where he fell for over $1 million dollars plus punitive damages.  What reaction do you think most "reformers" would have to such a case?

Except the case isn't hypothetical:  the plaintiff is actually Robert Bork.  Yes, that Robert Bork, who's spent the time since the Senate voted against his nomination to the Supreme Court by penning books telling us how the country's going to hell in a handbasket and, back in 2002, writing an article published in the Harvard Journal of Law & Public Policy arguing that frivolous claims and excessive punitive damage awards have created such a crisis that Congress should be allowed to enact tort reforms that would have been unconstitutional at the framing.  (So much for originalism, eh?)

Here's one way to avoid a Bruton problem:  dual juries.  Mother and son are on trial for murder, their convictions got reversed in 2003 because the statements of the two inculpated each other, and thus shouldn't have come in.  Instead of just granting separate trials, the prosecutor's plugging for the case to be heard by two juries, one for each defendant:  "One jury would leave the room when evidence admissible against one defendant but not the other was presented."  Betcha that works out.  Thanks to Ken Lammer at CrimLaw for the tip. 

You might want to tip your clients off about this:  Barry Cooper, a former Texas narcotics cop, who was hailed by his commanding officer as "probably the best narcotics officer in the state and maybe the country during his time with the task force," has produced a video called "Never Get Busted Again," with helpful hints for how to conceal a drug stash and fool drug-sniffing dogs.  Cooper decided to do this after concluding that the war on drugs was needlessly destroying families.  Full details here

Finally, if you're going to quote Beatles lyrics to a judge, it helps if you spell the group's name right, and if the judge knows less about them than you do.  In response to a a question on the pre-sentence investigation report asking the defendant, 'Give your recommendation as to what you think the Court should do in this case', the 20-year-old who'd just been convicted of breaking into a store and stealing 18 cases of beer replied, "'Like the Beetles say Let It Be."  The 56-year-old Montana district judge (and if anybody can figure out how a heist of beer wound up in Federal court, please let me know) wrote a two-page sentencing memorandum which included references to no fewer than 42 different Beatles' songs, and concluded with 

As a result of your Hard Day's Night you are looking at a Ticket to Ride that Long and Winding Road to Deer Lodge.

Hopefully you can say both now and When I'm 64 that I Should Have Known Better.

Continue reading "Catching up" »

Bad Love

You've got to figure that, in this day and age, a "Win a Date with the Teacher" contest isn't going to have a good ending. 

That didn't deter a local special education teacher by the deliciously ironic name of Christine Scarlett from holding one, and the winner turned out to be Steven Bradigan, the 17-year-old high school football quarterback.  Although he suffered from a hearing disability, his other parts apparently functioned satisfactorily; after the date at a local Dairy Queen ended in a mutual pawing session in Scarlett's car, the two began a torrid affair. 

The 36-year-old teacher's employment with the Strongsville public school system ended shortly thereafter, when the father of one of Bradigan's friends found Scarlett hiding in a closet in his home; apparently, the friend had loaned out his room for the couple's trysts.  Even after the discharge -- er, firing -- the two continued an on-again off-again relationship for the next couple of years, culminating in the birth of a son.

Things went south after that, with Bradigan's parents filing a lawsuit against the school system, and the county prosecutor charging Scarlett with 18 counts of sexual battery and two of disseminating matter harmful to juveniles.  Scarlett initially denied the child was Bradigan's, a defense that was complicated by DNA results showing the contrary, and a stash of X-rated photos that Bradigan's friends had taken of the pair.  (A more modest picture of the two can be found here.)

Although the general perception of teacher-student relationships has male teachers being the ones taking advantage, the reverse scenario seems to be cropping up with more frequency.  Indeed, if measured solely by age of the student, Scarlett's activities are probably less predatory than those of a number of her peers.  The most notorious case, of course, is that of Mary Kay Letourneau, the 34-year-old Seattle teacher who had an affair with one of her sixth-grade students; she wound up having two children with the boy, doing over seven years in prison, and the two are now married.  And then there's the story of Diane Cherchio West, a Bayonne, NJ, school teacher who had an affair with an 11th grader, had a child by him, and married him after he graduated, and then wound up seducing a 15-year-old friend of her son after he entered high school.

At any rate, the saga of Scarlett and Bradigan came to an end over the past week.  Last Thursday, the 8th District affirmed the grant of summary judgment against the Bradigans in their lawsuit against the Strongsville school board, holding that the statute of limitations had expired on their claim that the board failed to properly supervise Scarlett.  And yesterday Scarlett was sentenced.

I decided to go over and watch the sentencing.  I went with the typical male attitude toward this sort of thing:  an overwhelming sense of personal regret that no hot teachers had seen fit to hit on me during my high school years.

But as I listened to the kid and his mother speak their piece to the judge, I began to realize that maybe that wasn't such a bad thing after all.  There's a reason we don't want 36-year-olds playing around with kids two decades younger, regardless of the gender of the participants, especially when the 36-year-old is in a position of power over the kid:  that's emotionally, as well as sexually, predatory conduct.  And it becomes even more predatory when the mother explained the developmental disabilities her son had as a result of some problems at birth, how at 17 he functioned at the emotional level of a 12-year-old, how she'd explained all this to Scarlett at the first parent-teacher conference in an effort to gain Scarlett's assistance in helping the boy.

The judge gave Scarlett community control sanctions.

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I love AT&T; US Supreme Court news

I got into the office at six this morning, ready to knock off a post.  No Internet.  I call up the AT&T line, and after five minutes I'm finally routed to tech support, where some guy who sounds like he's from the teeming subcontinent swears his name is Irvin, and that he will assist me, all the while abjectly apologizing for the inconvenience.  Mine or his, I'm not sure.  After doing some checks, he informs me that there are some technical issues with the line in the entire area of Cleveland, with an estimated repair time of 8:00 AM.  Which, of course, comes and goes, and to make a long and painful story short, the time was extended, first to noon, and then to 4:00 PM, so hopefully it'll work tomorrow.  Maybe not.  At least it beats last week, when for some reason AT&T had decided that we'd canceled our account, and disconnected us. 

There were six decisions handed down by the US Supreme Court on Monday, all of them unanimous.  Which should tell you that none were of any consequence; the closest any of them came to that, at least as far as the people who are reading this are concerned, is Fry v. Pliler, which presented the issue of what standard of harmless error should be applied to constitutional violations on habeas corpus review.  The normal standard for determining the harmlessness of constitutional error is the Chapman test, that the error has to be harmless beyond a reasonable doubt.  Back in 1993, the Court had announced a different test for habeas claims:  the defendant had to show that the error had a "substantial and injurious effect" on the verdict.  In Pliler, the state court hadn't even found constitutional error, but the Court held that the Federal courts still had to apply the stricter test.

The big news out of the Supreme Court was its decision to review a case on the disparity in the sentencing laws on crack and cocaine.  Federal law provides for a 100-1 disparity in sentencing on drug laws:  5 ounces of crack will get you the same sentence as 500 ounces of powder cocaine.  Those laws are reflected in the sentencing guidelines, of course, but the US Sentencing Commission recently issued a report which acknowledged that the disparity wasn't justified.  (Sentencing Law and Policy has some excellent posts on this, including a link to the report.) 

Even before that, been a growing rebellion in the ranks of Federal judges over this, especially since Booker supposedly made the guidelines advisory instead of mandatory.  The 3rd Circuit held last year that a trial court erred when it held that it had no discretion to disregard the disparity and hand down a lower sentence than the guidelines provided, and the DC Circuit reached pretty much the same conclusion in February.  The 4th Circuit, though, recently overturned a sentence of 15 years (as opposed to the 19 years the guidelines would have provided), holding that a sentence was "presumptively unreasonable" when it was based solely on a disagreement with the disparate treatement the guidelines provide for crack and powder cocaine.  That's the case the Supreme Court decided to review.

The Court also decided to review a case which replaced US v. Claiborne.  As I mentioned last week, Claiborne and US v. Rita were two cases in which the Court was going to expound on their decision in Booker:  in Rita, the question was whether a sentence within the guidelines was presumptively reasonable, and in Claiborne whether a sentence outside the guidelines was presumptively unreasonable.  Unfortunately, Claiborne went and got himself killed in a botched robbery a couple of weeks ago, mooting his case.  The decision in Rita is expected within the next week or so.  Unfortunately, the Court won't be ruling on the crack/powder disparity and the Claiborne issue until next year, probably after January.

Continue reading "I love AT&T; US Supreme Court news" »

Case Update

We're getting into the home stretch of the US Supreme Court's October 2006 term, and we can expect to see several important decisions handed down over the next few weeks:  one on the effect of the Federal sentencing guidelines, another on taxpayer standing to challenge faith-based programs on First Amendment grounds, and one on using race as a method of assigning students to public schools.  And let's not forget the "Bong Hits 4 Jesus" case, which is sure to take its rightful place in the pantheon of landmark Supreme Court decisions. 

The Ohio Supreme Court churned out six decisions last week.  The most prominent was Welling v. Weinfeld, in which the Court adopted the "false light" theory of invasion of privacy.  It's probably not going to come up that often; there is a difference between false light and defamation, but it's a narrow one. 

In the 1st District this past week, Judge Mark Painter was busy, first reluctantly affirming summary judgment in a case where the plaintiff had stumbled over a bunched-up carpet; Judge Painter expressed his opinion that the "open and obvious" doctrine should be subsumed into comparative negligence, as he has done in other opinions, to the annoyance of at least one other judge, as indicated in this dissent.  He also authored the opinion affirming a $1.5 million judgment in a medical malpractice case, and held that the doctor's "ostrich-like defense" in the face of "overwhelming evidence that he had botched the operation" warranted award of prejudgment interest as well. 

The 10th District has a good case on what's a "reasonable time" in contract cases, holding that a builder a took a year to complete something that should have taken three months didn't make the cut.  The 9th District holds that a domestic violence victim's statements to her mother an hour after the incident could still constitute an "excited utterance."  The 3rd District holds that where the parties in a divorce case stipulate to the date of termination of the marriage, the court errs in picking a different one.

Closer to home, the 8th District reversed a search of a vehicle after a misdemeanor arrest; for whatever reason, the trial court had held that the right to search the passenger compartment applied only where the arrest was a felony.  In a DWI case, the court upheld the overruling of a motion to suppress where the police found the defendant passed out in his car, with the car keys clutched in his hand.  And in a civil case of first impression, the court reverses the granting of a motion to dismiss where the plaintiff failed to attach an affidavit of merit to a medical claim, holding that the appropriate motion for a defendant to file was a motion for more definite statement.

And here's the kind of tip that makes reading this blog worthwhile:  as noted by the 5th District, the procedure for evicting someone from a trailer park is governed by RC Chapter 3733, not Chapter 5321.

Trust me, there'll come a time when you'll thank me.

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Is the death penalty moral?

Most Americans think so.  Gallup did a recent poll on what is morally acceptable and unacceptable on a range of sixteen issues.  Capital punishment was the one in which there was the largest agreement:  66% of the respondents deemed it morally acceptable, while only 26% believed it to be wrong.

Some of the other results surprised me.  For example, while other polls show that almost two-thirds of the public is opposed to reversing Roe v. Wade, the respondents in this poll found abortion immoral, by a 51-40 margin.  And if this were a political forum, we'd have a lot of meat to chew on in the disparity in results along the liberal-conservative axis, especially on sexual issues.  For example, 47% of the public found homosexuality morally acceptable, while 49% found that it was not.  But that broke down to 83% of liberals finding it acceptable, compared to only 33% of conservatives.

In a sense, I was somewhat surprised by the result on the death penalty.  After all, there seems to be a good argument that the public is turning away from capital punishment in the one way that is most easily measurable:  juries are increasingly reluctant to impose it.  In 1999, 276 death sentences were handed down.  That number has declined every year since, falling to under 100 by 2005.

But on closer analysis, that decline isn't attributable to a swelling ranks of those who find capital punishment morally distasteful.  A lot of it is cost:  not only is there a qualitative difference between death and other penalties, as the Supreme Court once noted, but there's a qualitative difference between a capital case and an "ordinary" case.  The costs involved have led many small counties across the country to simply avoid prosecuting murders as death penalty cases.  In fact, back in 2002, a Vinton County Common Pleas judge issued an order prohibiting death penalty specifications in a murder case on the grounds that the trial would deplete the budget of the small Ohio county, and that the "potential impact of financial considerations could compromise the defendant's due process rights in a capital murder trial."  (The judge later reversed himself; the defendant was tried, convicted, and sentenced to death, and the conviction and sentence was affirmed by the Ohio Supreme Court in 2005.  Interestingly, the parents of the girl he murdered have been outspoken opponents of his sentence.)  Even states are not immune from the burden of those costs:  the defense in the impending death penalty trial of Brian Nichols, who killed a judge and three other people while escaping from an Atlanta courthouse in 2005, has cost $1.4 million already, bankrupting the state's public defender system, and putting the other 72 death penalty cases in Georgia on hold. 

The largest factor, of course, is the publicity which attends every release of a once-convicted felon from prison upon discovery that he's actually innocent.  That includes 124 under capital sentence, the most recent being Curtis Edward McCarty, who was released a month ago after spending 21 years on Oklahoma's death row based on the perjured testimony of a police chemist.  Obviously, the concept of "residual doubt" no longer exists just in the case law, but has crept into the jury's calculus as well.

But I'm not sure how far that's going to take the anti-death penalty movement.  After all, there are certainly any number of capital cases where there is no residual doubt, such as Nichols', where videotape evidence of his killings exists.  What's more, when attacks are directed at the dependability of death penalty determinations, the logical response is to make those determinations more dependable.  Although problems still remain, the quality of death penalty counsel has improved markedly.  And television has altered juror's perceptions as well; the prosecutor who's going to try to persuade a jury to impose a death sentence, without compelling forensic evidence, is in for a rough ride.

Indeed, the fact that a substantial majority of the public still views the death penalty as moral reflects a tactical choice on the part of the anti-death penalty movement:  instead of focusing on morality, they've focused on reliability and the offering of alternative sentences, such as life imprisonment without parole.  To a certain extent, that's unavoidable:  it's hard to foment much moral outrage at the prospect of executing someone who raped and murdered a 9-year-old girl.  But there are unintended consequences of such a choice:  life without parole has been extended to a broad range of crimes that never would have been subject to the death penalty, with the net result that far more people are serving far more time than they otherwise would.  The harshness of this result was demonstrated recently by the ironic spectacle of over 300 Italian prisoners serving life asking that they be given the death penalty instead.

It may be that capital punishment will eventually wither away, done in by its own inconsistencies and inherent difficulties.  But the fact that two thirds of the American people still regard it as morally viable does not suggest that day will come anytime soon.

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Supreme Court Preview

This week is the last batch of arguments in the Ohio Supreme Court for a while, except for a handful of disciplinary cases next month.  Among the highlights:

State v. Jones:  The Court certified the following issue:

Whether a trial court complies with Crim. R. 11(E) by simply notifying a defendant of the effect of his/her plea as set out in Crim. R. 11(B) or whether the trial court complies with Crim. R. 11(E) by notifying a defendant of the maximum penalties that could result from a plea and that the defendant waives his/her right to a jury trial by entering a plea but does not notify a defendant of the effect of his/her plea."

See how many times you have to read that before it makes sense.  I figure the over/under is six.  Actually, it's not as complicated as it sounds:  the court of appeals had tossed defendant's guilty plea to a domestic violence charge because the trial court didn't advise the defendant of the effect of a guilty plea, or of a no-contest plea.  The question is whether that's required by the rules.

State v. Siler:  This is a Crawford case, involving the question of whether a three-year-old's statements to the police about the murder of his mother qualify as testimonial statements.  The appellate court had actually affirmed the conviction in 2003, but Crawford came down while Siler's case was on cert application before the Supreme Court.  The Court vacated the conviction remanded it back to the appellate court for further consideration in light of Crawford, and the 5th District then reversed the conviction.  It's one of the most significant Crawford cases to come down in a while, squarely raising the issue of how much the declarant's intent means in determining whether a statement is testimonial.  I'll have a post or two on this next week.

State v. Fairbanks:  In this case, the defendant had led the police on a car chase.  He was cited on the scene for reckless operation, speeding, and driving left of center; he paid the waiver fines on the tickets a week later.  Shortly after that, he was indicted for failulre to comply (the old "fleeing and eluding"), a third-degree felony, for the same incident.  The 4th District held that the felony prosecution was barred by double jeopardy as a result of the prior misdemeanor convictions.  The 8th and 12th Districts have decided the issue differently, and now it's up to the Supreme Court to sort through it all.

Fisher v. Hasenjager:   A fairly significant issue in this case, for divorce attorneys:  does a modification of a shared parenting agreement, so as to designate only one parent as the custodian, require a showing of "changed circumstances," commonly required for custody modification, or is it sufficient that such a change merely be "in the best interests of the child"?  The 3rd District answered the latter, but there's conflicting case law from other districts.

I also wanted to follow up on a few other posts I've done.  As I'd mentioned on Monday, US v. Claiborne was one of the most highly-anticipated cases on the Supreme Court docket this year, promising to provide some clarification of the Booker decision on the remaining effect of the Federal sentencing guidelines.  At least, it was highly anticipated, until Claiborne went and got himself killed in a botched robbery attempt last week.  As I'd indicated in my post, that mooted the case, and this week the Court sent the case back to the 8th Circuit with instructions to vacate its decision, putting an end to it.  The 8th Circuit Public Defender's office had filed a brief with the court asking to substitute another case which raised the same issue, but no word on that. 

Then, last December I wrote about Kathyrn Johnston, a 92-year-old Atlanta woman who died in a police drug raid on her house.  It was a "no-knock" raid, and she'd apparently thought she was being burglarized, and fired a shot at the police as they broke down her door; they fired 39 shots in return, six of which hit their target, and killed her.

The search warrant for the raid was based on an affidavit which claimed that an informant had bought drugs at the house earlier that day.  Turns out that was untrue; the police had gotten a tip that there was a large stash of cocaine in the house from a street informant, then made up the part about the sale, and also about surveillance cameras being mounted outside the house, in order to justify the "no-knock" provision.  Nothing more than a minute quantity of marijuana.

Back in February, three of the officers were indicted for murder and other assorted crimes.  One has since pled guilty to manslaughter, criminal solicitation, violation of oath, perjury, and making false statements.  The case remains pending against the other two.  An ongoing FBI investigation has revealed that Atlanta police routinely lied in search warrant affidavits.

Quelle surprise.

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Proportionality in sentencing

One December day in 2005, Carl Geddes decided to spend some time downloading kiddie porn.  Bad Decision #1 was to do it on a computer at the Cleveland Public Library.  Bad Decision #2 was to print it out.  Bad Decision #3 was to throw some of it into a lavatory trash can in the library.  Bad Decision #4 was to include with the jettisoned materials a copy of the resume that he'd copied at the library, which of course contained helpful information such as his name and address.  Considering that Carl was on parole from a three-year sentence for molesting a 9-year-old female relative in 2001, and had served a year for groping a 12-year-old neighbor girl back in 1992, one can only wonder what kind of job he was looking for.

His career plans were substantially deferred on April 19, 2006, when he appeared for sentencing.  Geddes had pled his twenty counts down to six of pandering sexually oriented material involving a minor, a second-degree felony.  The judge sentenced him to five years on each count, and ran the sentences consecutively.  The newpaper account reports that upon hearing the sentence, "Geddes cursed the court and his lawyer, demanded that he be able to retract his plea and shouted, 'This is ridiculous!'"

And last week, the 8th District agreed, finding that "the imposed sentence is manifestly disproportionate to the crimes committed by Geddes."

This wasn't the first time that the 8th District had thrown out a sentence on grounds that it was excessive, as I pointed out last year.  Nor is it the first time that a court has addressed the issue of proportionality, although the result is usually worse, as was the case in the 9th District decision I discussed a few months ago.  It would be nice to tell you that the court in Geddes synthesized those rulings and articulated a clearly-definable standard for trial judges to follow, but it didn't. 

Just two months ago, in State v. Tish, the court had rebuffed a defendant's claim that an 8-year sentence -- out of a maximum of 21 possible -- for various child porn charges was excessive, but the Geddes panel distinguished that case on the basis that there was "an inference of gross disproportionality" in Geddes' sentence.  In fact, in Tish it rejected the contention that there should be any comparison with other sentences unless there was an inference of gross disproportionality in the sentence under review.  Since the court found such an inference in Geddes' case, it could proceed to a comparison of the two cases, and found no difficulty in distinguishing them:  Unlike the defendant in Tish, "Geddes took responsibility for his actions, demonstrated remorse for his actions, and admitted to a prior history of sexual criminal conduct and admitted that he needs assistance with his problem." 

But the court never gets around to explaining the standards for determining whether "gross disproportionality" exists in the first place, allowing a comparison with other cases.  (While the court gives a cite for the "gross disproportionality" test, if you follow it through, it actually leads to a US Supreme Court case on the application of the 8th Amendment's Cruel and Unusual Punishment Clause to sentencing.)  One comes away from the court's opinion thinking that perhaps "gross disproportionality" is like Justice Stewart's definition of obscenity:  "I know it when I see it."

But maybe that's the best you're going to do here.  The primary function of an appellate court is to provide guidance to the lower courts, so as to harmonize their rulings.  Usually, that should be done by providing relatively clear standards for what should be done.  When those standards don't exist -- and they don't here -- the next best thing is to strike down the occasional ruling that lies outside what should be acceptable.

And Geddes probably fits that bill.  There's no question that the guy is a sleazoid, but there are a fair amount of people who do things a lot worse than download kiddie porn who don't wind up with anywhere close to thirty years.  One other thing the appellate court might have factored into all this:  as the newspaper account somewhat indelicately pointed out, the trial judge was "running for re-election amid criticism that she is soft on crime," and the sentencing was just a couple of weeks before the primary, which the judge would go on to lose.  I remember reading about the sentencing at the time, and thinking, tongue in cheek, that the best assignment of error would be ineffective assistance of counsel, because the lawyer didn't try to get the sentencing delayed a month.

Continue reading "Proportionality in sentencing" »

Surfin' the Web

There were a couple of interesting sentencing decisions out of the 8th District, which I'll get to tomorrow, but, as they say, my plate is pretty full right now, so we'll do something I haven't done for a while:  roam the Internet for legal stories of the interesting and macabre.

One of the interesting things is that the Louisiana Supreme Court recently affirmed its newly-enacted death penalty for child rape.  To be more precise, the court had previously upheld the statute in pretrial rulings, but this was the first time they'd affirmed a death sentence issued under it.  Back in 1977, the US Supreme Court struck down a Georgia statute which provided a death penalty for rape, but limited its ruling to cases involving adult victims.  Given the change in the court's membership, I don't think they'll have much of a problem with imposing capital punishment for child rape.  South Carolina and Oklahoma have passed bills allowing death for repeat offending child rapists, and a similar bill was recently signed by the governor of Texas.

Some other tidbits:  In an interesting twist on anti-discrimination law.  EHarmony.com, the Internet dating service, is being sued under California law for not having a "men seeking men" or "women seeking women" section on their web site...  A doctor decides to blog about his malpractice case, while the trial is in progress, except that the plaintiff's lawyers are reading it.  The blog gives away the entire defense strategy, and also makes disparaging comments about the jury.  After the doctor is confronted with what he wrote on the blog when he testifies, the case is immediately settled.  Would've liked to be a fly on the wall at that attorney-client conference... The current raging debate on the blogosphere:  did a Federal judge go too far in seeking to impose sanctions on a bankruptcy lawyer for telling her, in open court during a hearing, that she was "a few french fries short of a Happy Meal"? 

Finally, falling into the macabre category is this story about a teacher who's suing four students for making a movie in which he is killed.  By stuffed animals.  Who are ordered to kill the teacher by an evil teddy bear.  No, I am not making any of this up.  Now, in the thirty years I've practiced law I've been called upon to do some things that, shall we say, have strained my concept of self-respect.  As my wife likes to say, "The only thing that amazes me more than what you'll do for money is what you'll do for no money."  Still, I have not hit rock bottom, because I have never had to write a complaint which included a paragraph like the following:

"The defendants intentionally created the 'Teddy Bear Master' and intentionally used the plaintiff's name in such a way that would provoke a reasonably foreseeable emotional disturbance or trauma." 

Continue reading "Surfin' the Web" »

Case Update

Two of the most anticipated Supeme Court cases in recent years are Rita v. US and Claiborne v. US.  As I mentioned a couple weeks back, they're the first post-Booker decisions to come down, and it's expected that they will clarify the exact status of the sentencing guidelines, something that the appellate courts have been wrestling with since Booker was handed down in January of 2005.  The Court had argument on the two cases in February, and a decision is expected any day now.

Except that last week, Claiborne went and got himself killed in an attempted robbery, thereby mooting his case.  There are other cases in the pipeline which raise the same issue, and the court could even decide one of those cases without oral argument and announce it at the same time as they would have announced Claiborne, simply substituting one set of facts for the other.  But I'm pretty sure this is a Supreme Court first.

Closer to home, the Ohio Supreme Court upheld the constitutionality of the law requiring a change of circumstances for custody modification.  As between parents, the law raises no problems.  In Re Braden James, custody had been awarded to the maternal grandparents, and the biological parents sought custody, claiming that the requirement of proving a change of circumstances interfered with their constitutional right to raise their children.  The appellate court bought that contention, but the Supremes rejected it by a 4-3 vote.  There's some interesting issues floating around there, and I'll do a post on it in the next week or so.  On to the appellate courts:

1st District holds that proof of firearm specification can be proved without "overt act" (such as reaching into pocket) by defendant... 10th District upholds admissibility of defendant's calling co-defendant a "snitch" as showing consciousness of guilt... 8th District affirms summary judgment dismissing case brought by gas dealers complaining that Shell Oil charged them higher wholesale prices because they were minorities... 12th District holds that temporary employment agency had no duty to run criminal check on employees, affirms summary judgment for agency on claim of assault by employee... 9th District upholds child pornography statutes against attack that difficulty distinguishing between virtual and actual child pornography makes them void for vagueness... 5th District holds that employee's driving drunk seventy miles from her route was criminal act not within the scope of her employment, affirms summary judgement in personal injury case against her employee...

Talk about client control.  From the 6th District's decision last week in State v. Phillips:

After being sworn, appellant testified that the appointed attorney, Scott Hicks, who represented appellant at the time that he entered his guilty plea, threatened to throw appellant out the window if he did not listen to the attorney.

Continue reading "Case Update" »

Drug-sniffing dogs and traffic stops

The Ohio Supreme Court, in its decision last week in State v. Batchiliframed the issue as being "whether the Fourth Amendment is violated when a police officer conducting a traffic stop calls for a canine 'walk around' while waiting for the results of a criminal background check."  The answer was as predictable as it was regrettable.

The facts in the case are, for traffic stops any more, typical:  a State Highway Patrol officer was stopped on the side of the road on an interstate when she observed Batchili drive by.  Although he wasn't violating any traffic laws, she decided to follow him, saw him commit a marked-lanes violation, and stopped him.  Because Batchili "gave conflicting answers as to who owned the vehicle, did not make regular eye contact, and had shaking hands," and because the officer smelled deodorizer in the vehicle, she called for backup, and a drug-sniffing dog.  The cop and dog arrived, and the dog alerted at the vehicle.  This served as the basis for a search, which discovered numerous boot-leg DVD's and videos, but no drugs.  The 6th District tossed the search, finding that the state failed to show "specific and articulable facts giving rise to a reasonable suspicion of criminal activity beyond that which prompted the stop." 

The Supreme Court reversed, and was unusually caustic in its tone toward the appellate court.  The law here is basically that a police officer can't prolong a normal traffic stop in order to allow another officer to bring a dog to the scene.  The Court found that the 6th District was off-base in three respects.  First, there was no indication that the stop was prolonged:  the dog alerted less than nine minutes into the stop, while the first officer was still waiting for the results of the computer check.  Second, even if the officer had prolonged the stop, she could do so if circumstances after the stop gave her reasonable suspicion for doing so.  Here, the Court held that the 6th District had erred by using a "divide and conquer" approach to the officer's suspicions, examining them individually instead of in combination, as required by a "totality of the circumstances" approach.  Finally, the Court held that the 6th District erred in attaching any importance to the fact that the defendant hadn't been given a traffic citation for the marked-lanes violation; given the officers' discovery of a felony, the violation became insignificant.

As I said, the circumstances appear typical, until you read Justice Pfeiffer's dissent,  where you learn that the officer caught up to the defendant, who was was driving at the speed limit, within a couple of miles, which required her to drive at a speed of 100 to 120 mph, and that the basis for the stop was that she observed the driver, on a single occasion, "drift over the dotted center line by approximately the width of the driver's side tires."  As Pfeiffer points out, driving at three-digit speed on the interstate might present a bit more of a threat to the public safety than a slight drifting over the center line. 

Pfeiffer's chief complaint is that the stop was pretextual, and of course it was.  And, of course, it doesn't matter:  back in 1996, in Dayton v. Erickson, the Court held that a police officer could validly stop a vehicle for a traffic violation, even if the stop was really motivated by a belief that the defendant was engaged in more nefarious activity.

The problem is that any officer who can't find a traffic violation within a mile after starting to follow someone needs to find another line of work.  As Pfeiffer pointed out in his dissent in Dayton,

You drive by a policeman, and for some reason, he doesn't much like the looks of you. Maybe your car is shabby; maybe you are. Maybe you are out late in a high-crime neighborhood. Maybe you are in a low-crime area, but you are part of a high-crime demographic group. The reason does not much matter -- to him you are a suspicious character, that's all. The policeman pulls up behind you. You will make a mistake. You say you did use your turn signal to change lanes? He didn't see it. Or, prove to him that you did not exceed the speed limit by one mile per hour when you were busy looking at him in your rear-view mirror. You'll never be charged with the violations -- you're just being stopped and detained to see if his hunch about you was right.

Pfieffer was right then, and he's right now.  Sadly, he was also right back then when he said,

While it is always a criminal defendant seeking the Fourth Amendment's protection, ultimately Fourth Amendment jurisprudence protects us all from unreasonable intrusions on our liberty. It was not a criminal who lost in this case today -- all of us who value our freedom did.

He could have said the same thing last Wednesday.

Continue reading "Drug-sniffing dogs and traffic stops" »

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