A couple of weeks ago I got an email from a lawyer at a Cleveland firm saying that he liked my blog, and had linked to it, and wanted to know if I’d put up a link to his.  I have.  Actually, there’s a couple of them, which you’ll see on the blogroll on the right:  “Boopblawg” and “Lougoblawg.”  They’re both from lawyers in the same firm, one a man and one a woman, and they’re both from Cleveland, so check it out.  As a sidelight, Lougoblawg — the one by the woman — had a little baby chick in the bottom corner, which chirped.  Endlessly.  Constant, repetitive chirping.  I wrote back and told them that I liked the site, but that I’d rather stab myself in the eye with a fork than listen to the chirping.  The other day I got an email saying, “The chick on the blawg dies,” and sure enough, it did. 

What’s that got to do with marked lanes?  Nothing, but this does.  A few weeks back, the 8th District handed down a seemingly inconsequential decision in a traffic violation case called Middleburg Heights v. Quinones.  The defendant had been stopped for going 53 in a 25 mph zone, and the officer also observed him going over the double yellow line a couple of times.  He pulled Quinones over, Scene 1 of this movie ends with Quinones convicted of DWI, speeding, and a marked lanes violation.  After the intermission, Scene 2 picks up and ends with the appellate court affirming the DWI and speeding convictions, but reversing the marked lanes for insufficient evidence.

The reason this is a big deal is because, as just about every defense attorney knows, minor traffic violations such as driving outside of the marked lanes (also called weaving) offer a justification for a traffic stop, which can lead to all kinds of trouble for the driver and the passenger.  It’s not unusual for police to use traffic violations as a pretext for stops to find drugs or other contraband.

There were several cases back in the early 90’s which held that “minor” violations of the weaving statute did not afford a legitimate basis for a traffic stop, basically because it was clear in the context of those cases that the violation had been used as a pretext for a stop.  Then along came the US and Ohio Supreme Courts with decisions holding that it didn’t matter whether the violation was a pretext:  as long as there was a violation, the police had the right to stop.  Over the next ten years, you had a stream of appellate cases saying that any crossing outside the lane — right or left — was a violation of the statute, and gave the police reasonable cause to stop your car.

Until the 3rd District’s decision last year in State v. Phillips, from which the Quinones court borrows heavily.  I’m not going to get into a detailed analysis here — the portion of the opinion in Phillips dealing with marked lanes violations is 32 pages long, so you might want to wait until it comes out on video — but the short version is this:  the statute requires that

A vehicle shall be driven, as nearly as is practicable, entirely within a single lane or line of traffic and shall not be moved from the lane or line until the driver has first ascertained that the movement can be made with safety.

As far as the Quinones and Phillips courts are concerned, that means there are two prongs to the statute:  the practicality prong, and the safety prong.  It’s up to the state to present evidence as to both; they cannot be inferred simply from the fact that the defendant did cross the line.

And, of course, if the state can’t prove both, it means that there’s no basis for a traffic stop, and if they find something as a result of the stop, it’ll get tossed on a motion to suppress.

This isn’t necessarily a big deal.  The 9th District came to a similar conclusion three years ago in State v. Karner, but hinted that the problem could have been solved simply by asking the officer “if he witnessed Appellant leave his lane of traffic without first ascertaining whether or not such movement could be done with safety.”  (For that reason, it might be wise to pull out these cases after the prosecutor’s put on his evidence in the motion to suppress hearing.)  Plus, there’s a difference between having probable cause to make a traffic stop and having sufficient evidence to convict; the two issues involve substantially different quantums of proof.  Still, the cases offer some fertile ground for the imaginative attorney willing to till it.

My God, farming metaphors.  Is this what I’ve come to?  That’s almost worse than chirping chicks.

Oh, and for those of you who do handle traffic or misdemeanor cases, Phillips is a keeper for another reason.  You know how your client will get charged with five different violations, plead out to two of them, but get hit up with court costs for all five?  Phillips says that’s a no-no:  court costs can only be applied to one case, no matter how many violations.

I was on the road this weekend, so didn’t have time to put together the normal case update; I’ll do a two-week version next Monday.  The Supreme Court did hand down three fairly significant decisions, so I’ll talk about them today.

The first is a civil case, Celmer v. Rogers, in which the Court upheld the 11th District’s decision to permit a doctor to testify as an expert in a malpractice case, despite the fact that he didn’t meet Evid. Rule 601(D)’s requirement that he devote one-half of his professional time to the clinical practice of medicine:  he’d retired about six months before the trial.

This case has virtually no precedential value.  First, the facts were bizarre:  the trial had been postponed twice by the defendants for a total of about five months, and there’d been a 13-month stay when one of the insurers went bankrupt.  Those facts are part of the syllabus, so unless you’ve got a case where that sort of thing happened, Celmer doesn’t mean anything to you.  Second, the holding was that the trial court had discretion to admit the testimony, so presumably it had discretion to refuse it, too.  The one good thing about the case is that it plainly states that “the purpose of Evid.R. 601(D) is to prohibit a physician who makes his living as a professional witness from testifying on the liability of physicians who devote their professional time to the treatment of patients,” so if you’ve got an expert who isn’t a “professional witness,” you can argue that you’re entitled to more leeway under the rule.  Whether you get it is another story, and if you don’t, it’s unlikely that the higher courts will bail you out.

The second case was State v. Carswell, which presented the issue of whether Ohio’s Gay Marriage Amendment in 2004 impacted the domestic violence statute.  Carswell, who’d been convicted of beating up the woman he was living with, had argued that the portion of the statute which protected “a person living as a spouse” conflicted with the Amendment, which banned the creation or recognition of “a legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance or effect of marriage.”  To the suprise of no one except the two (out of eleven) Ohio appellate districts who’d bought into this argument, the Supreme Court affirmed Carswell’s conviction, finding no conflict.  Justice Lanziger, the lone dissenter, makes a good logical and syntactical argument to the contrary, and frankly, it would have been a poetic justice if the net result of the Gay Marriage ban had been to declare Open Season on Girlfriends in Ohio, but that just wasn’t going to happen.

The last case was State v. Tooley, which presented the issue of whether, and how, the US Supreme Court’s decision in Ashcroft v. Free Speech Coalition back in 2002 affected Ohio’s child pornography statutes.  In Ashcroft, the Supreme Court had held that virtual child pornography was protected by the First Amendment.  Virtual pornography, for those less technologically inclined, is pornography by computer manipulation of images, and for that reason doesn’t require the use of actual children.  (There is software which can “regress” a picture of an adult so that it can wind up looking like a child.)  The Court had held that simple possession of pornography wasn’t criminal, but later created an exception for child pornography, basing the exception on the idea that banning possession was necessary to ban production, because production resulted in harm to children.  But if no children are actually used, then there’s no basis for a ban.

The Court in Ashcroft had struck down the Federal ban on child pornography because it was overbroad:  it didn’t make a distinction between virtual and actual pornography.  The Ohio Supreme Court in Tooley rescued the Ohio statute from the same fate by holding that it did in fact make such a distinction, and required the state to prove that a child was actually used.  This isn’t as daunting a task as it might appear:  the statute creates a “permissive inference” that

a person in the material or performance involved is a minor if the material or performance, through its title, text, visual representation, or otherwise, represents or depicts the person as a minor.

The Court found that the stuff on Tooley’s computer did create that inference — the file names were things like “illegal 128.jpg” and “08yo_innocent_girl_blowjob_(0.05).mpg.” — and that Tooley hadn’t presented sufficient evidence that he thought he was downloading virtual kiddie porn instead of the real thing.  The Court, perhaps inadvertently, left a big escape hatch for future cases, noting that

If Tooley had established that a substantial amount of virtual pornography exists, his argument that the mens rea needed for conviction should be more than reckless might be more persuasive.

I would imagine that future child porn cases will feature expert defense testimony on that very point.

I’ve written about a dozen posts on sexual predator designations in the past year.  One of the reasons for that is that it comes up a lot.  There have been about 170 criminal cases decided by the Ohio courts of appeals so far this month.  Almost 10% of them involved a sexual predator designation.  Another reason is that it’s a pretty murky area of the law.  How murky is demonstrated by two excellent opinions out of the 8th District last week.  Interestingly, both opinions were in the same case.

State v. Pierce involved a defendant who, at age 24 in 1996, had been convicted of raping a 21-year-old “longtime” female friend during a cocaine binge (his, not hers).  He did ten years in prison, during which he was a model prisoner, getting his GED, attending college classes, obtaining certificates in various vocations, serving as a literacy tutor, and attending drug treatment.  He’d been going to AA regularly since his parole from prison, and the report prepared for the sexual predator hearing indicated his drug and alcohol addictions were in full remission.  He’d had several convictions prior to the rape, including a burglary and three drug offenses as an adult, but no other sexual offenses.

The trial court classified him as a sexual predator anyway, determining a likelihood of reoffending

due to the offender’s age, prior criminal record, defendant’s mental illness i.e. drug addiction, the nature of sexual conduct with the victim. Additional behavioral characteristics that contribute to the defendant’s conduct also were considered. Specifically, his conduct during the prior burglary, the Static-99 evaluation of moderate-high risk category including four or more prior sentencing dates, prior non-sexual violence, unrelated victim and not living with a lover for at least two years.

How age played a factor is unclear; Pierce was 37 at the time of the hearing, and the Static-99 counts age as a factor indicating likelihood of recidivism only for those under 25.  Pierce appeared to have his drug addiction problem well under control.  The “not living with a lover for at least two years” overstates the factor; the Static-99 question is having an intimate adult relationship for at least two years.  It’s somewhat understandable that a 37-year-old man who’d spent ten years of his life in prison wouldn’t meet that factor, especially since he’d been out of prison less than a year at the time of the hearing.  If that factor hadn’t counted against him, he would have fallen into the next lower category on the Static-99, which is “low to moderate” risk.  (A full guide to how the Static-99 is scored, and what it means, can be found here.  It’s pretty much a must-read if you’ve got one of these cases.)

Judge Gallagher, writing for the majority, upheld the decision.  He noted that the Supreme Court had so substantially limited appellate review of sexual predator designations a couple month back in State v. Wilson (I discussed Wilson here) — basically, the decision has to be upheld if there’s some “competent, credible evidence” — and that the trial court doesn’t have to find a majority of the factors, and doesn’t have to give them equal weight.  The way this all works out is that if the judge mentions anything in the statute, it’s pretty much unreviewable. 

That obviously troubled Judge Gallagher.  He noted a “concern about overclassification of sexual predators,” which he’d voiced in another decision just a few months ago.  (I handled the appeal, and discussed it here.)  He also cited the outline for the “model predator hearing” given by the Supreme Court in State v. Eppinger, but conceded that

Unfortunately, even rigid adherence to this model will not end the problem of inconsistent sexual predator labeling. Only the adoption of clearly defined classes of offenders, such as “child predators” or “serial rapists,” coupled with standards based on specific conduct or prior conviction(s), will diminish the dangers of inconsistent labeling.

That’s obviously a job for the legislature.  But maybe not, as pointed out in Judge Rocco’s dissent.

Rocco begins by conceding that Wilson “essentially has directed appellate courts to treat trial court fact-finding in this area with kid gloves,” and notes that because of the statute’s elasticity, in every case there’s going to be some evidence supporting a designation.  After acknowledging the “high hurdle” he has to leap to overcome the court’s finding, he pretty much does exactly that.

Judge Rocco’s main line of attack is on the Static-99 itself.  He argues first that the statute was enacted mainly to protect against sexual predation of children, and then points out that that whether the victim was a child isn’t even a factor under the Static-99; Pierce scored higher than the defendant in State v. Gus, who’d abused his two step-daughters on numerous occasions over a nine-month period.  (The number of abusive incidents is also not a factor under the Static-99).  He notes the absurdity of a man who has a solitary incident involving an adult being regarded as more of a threat than a man who sexually abuses children over a long period of time, and concludes that

This court has the responsibility to ensure that overclassification is kept to a minimum.  We cannot fulfill  that responsibility by granting too much deference to the trial court and by using the justification that the legislature has not been “specific” enough.

I’m an admirer of Judge Gallagher, and have found his opinions consistently thorough and often thought-provoking.  I’ve got to go along with Judge Rocco on this one, though.  First, the result here was absurd, but more than that, it was unjust:  a man who, by all accounts, had done everything he could to turn his life around is now going to drag a sexual predator classification around with him for the rest of his life, because there’s no way to get rid of it.  Second, waiting for the legislature to fix this is a non-starter; I don’t know exactly what the legislative priorities are in Columbus right now, but I figure that making sure that fewer people are designated as sexual predators is somewhere on the middle of page 12.  This was a bad outcome, and it wasn’t the first one, and it’s not going to be the last until the appellate courts decide to do what they’re supposed to do, which is not only to keep the lower courts in line, but especially to step in when an injustice has been done.

Before I get into this, there’s something I have to explain.  See that time-stamp at the bottom of the page, where it says “Posted by Russ Bensing at 7:32 AM”?  That doesn’t mean I finished writing it at 7:31 AM.  I’m actually writing it now, which is Wednesday afternoon, at about 2:30.  The software I’m using allows me to specify when I want it to appear on the blog.  I didn’t want my legions of countless fans to think that I got up at some ungodly hour in the morning just to write this.

I’m beginning to think I’m getting too old for this.  A couple months back, I got assigned to a crack pipe case.  I go up to the first pretrial, and find that this particular judge has a policy for crack pipe cases:  one year inactive probation, and out the door.  Since my client had about eight priors, all for drugs, it doesn’t get any better than that.  He pled out, and sentencing is set for tomorrow.

So yesterday I got a call from the arraignment room telling me I’d been assigned to handle the new drug trafficking case he’d just been indicted on.  And this morning, I had to listen to his mother tell me about how he’s a good boy and how he won’t get into trouble any more because his grandfather has cancer.  Makes sense to me, and I’m sure the judge will buy it, too. 

Not ten minutes after that, I got a phone call from a client whose appeal I’m handling.  He’d broken into a car and stolen a radio and some CD’s.  A couple of guys, one a fireman, saw him, chased after him, and tackled him and held him for the police.  He was charged with two counts of robbery, but the lawyer worked it down to a plea on two counts of theft.  The judge, one of the best guys on the bench, gave him a max consecutive two years, undoubtedly influenced by the fact that the defendant had 19 prior convictions, and had been to prison 9, count’em 9, previous times.

I managed to get the brief done, something about how the trial court failed to articulate its findings on the seriousness and recidivism factors in RC 2929.12, which would have been a much better argument if there weren’t half a dozen Ohio Supreme Court cases saying a judge doesn’t have to do that.  I tried to waive oral argument, because I wasn’t thrilled with the prospect of having three appellate judges laughing at me and asking, “You want us to say what?”  Unfortunately, the prosecutor wasn’t willing to agree, telling me, as he felicitously put it, that he’d rather “kick your sorry butt from one end of the courtroom to the other.”  Which is a fairly accurate description of how the events unfolded.

So when my client called — from the joint, on a 3-way with his mom — and asked me how the oral argument went, I said, “Eh, could’ve been better.”  I told him it was tough, since all we had was the sentencing issue.  He immediately castigated me for raising only that.  Hey, what do you want?  It’s a plea.  Kinda tough to argue trial error.  What about ineffective assistance of counsel? he says.  Right; you’re charged with two second-degree felonies, and your lawyer gets you two fifth-degree felonies, and she’s the screwup in this scenario.  Then he starts in about how the victim wasn’t there at his sentencing, but the two guys who’d chased him down were, like it would’ve gone better if the victim had been there, too, and when his mother started in with how the witnesses could’ve been lying, I decided we’d come to Life Is Too Short, Chapter 124, and gently replaced the phone receiver in the cradle.

I’m beginning to think that Mike Polensek has a point.

There are good things, though.  One was that one of the judges on my panel on Tuesday had also been on the panel I’d had on another case a month earlier.  In that one, which involved improper comment by the prosecutor in closing argument, I’d invoked my favorite line in response to the question of whether the curative instruction didn’t solve that:  “As one court put it, ’You can’t throw a skunk in the jury box and instruct the jurors not to smell it.’”  This judge was impressed with the line, and asked me after the argument who’d said it.  I told her that if she used it in the opinion to reverse my client’s conviction, I’d be happy to tell everybody she did.  She laughed.  Not the “Gosh, that’s a clever response” laugh; more the “Yes, that could conceivably happen, in a parallel universe” laugh.  I promised I’d let her know what the source was.

Well, judge, if you’re reading this (and she sometimes does), here’s the skinny.  There are about three or four Ohio cases which quote the line, but all attribute to its rightful source:  a 1962 case from the 5th Circuit.  Here’s the money quote: 

In every case involving improper argument of counsel, we are confronted with relativity and the degree to which such conduct may have affected the substantial rights of the defendant. It is better to follow the rules than to try to undo what has been done. Otherwise stated, one ‘cannot unring a bell’; ‘after the thrust of the saber it is difficult to say forget the wound’; and finally, ‘if you throw a skunk into the jury box, you can’t instruct the jury not to smell it’.

I like that one about the saber, too.

The best part?  Dunn involved the prosecution of a mayor for income tax-invasion, and the prosecutor’s remark was that all politicians take kickbacks.  The court found that remark prejudicial, and reversed.

Back about six years ago, one of my favorite judges figured he’d do me a favor, and assigned me an aggravated robbery case which had come back on a reversal and remand.  The defendant had already done eight years in prison, and the judge assured me that the resolution would be simple:  the defendant would plead out, the judge would sentence him to time served, and I’d submit my fee bill.  Easy money.  A quick call to my secretary confirmed that at that particular moment there wasn’t anybody standing outside my office door with a burning desire to give me a thousand bucks, so I took the case.

It seems that this was in the same category as those radio ads which promise that you can quadruple your income by working for a couple of hours a week out of your home.  The defendant wouldn’t make a deal, it turned out; he was still on parole, and a guilty plea would have violated him and sent him back to serve the remaining fifteen years of his sentence.  Besides, he wasn’t interested in working something out.  He had become an expert on Ohio’s “other” speedy trial statute, RC 2941.401, and he was going to ride that horse all the way.

That section, as you can see, provides that if the state brings an indictment against someone who’s already a prisoner in Ohio, it has six months to try him; otherwise, the case is dismissed, just as with the regular speedy trial statute.  Of course, that’s contingent on the prisoner making a demand for trial.  What had happened with my client was that he claimed the state didn’t properly notify him of the pending charges, and so he didn’t have a proper chance to demand the trial.  The judge (a different one; this was ten years earlier) didn’t buy it, and denied the motion to dismiss.

Which is where things got really funky.  The defendant worked out a plea, intending to take the issue up on appeal.  He did, only to find that his guilty plea waived his right to contest the denial of the motion to dismiss.  (Just as it will waive everything else except whether the plea was valid, and the sentence.  If you want to take up a denial of a motion to suppress, for example, you need to plead no contest to the indictment.)  Long story short, a couple years later the defendant filed a motion for post-conviction relief, arguing that his counsel was ineffective for not telling him about this.  The attorney was a stand-up guy, and testified that he’d wrongly advised his client that he could still appeal from a guilty plea.  The judge vacated the conviction.  The prosecutor took the case up to the court of appeals, which affirmed it, and so after a ten-year legal oddyssey, the case was back at square one:  the judge didn’t feel bound by his predecessor’s ruling on the application of 2941.401, so he wanted a new hearing on whether the defendant had been properly notified of the pending indictment, so that he could request disposition.  That’s the door I came in.

Last week, the Supreme Court cleared all that up in State v. Dillon.  No, that wasn’t my case, but it was fairly similar.  The defendant had been told by the police that he’d been indicted, and the state had subsequently sent a copy of the indictment to the warden and told him to serve it on the defendant.  He never did; Dillon was finally served with the indictment when he was brought back by the county for his arraignment.

The trial judge held that Dillon was required to demand trial when he was first informed of the indictment.  The court of appeals didn’t agree, though, and neither did the Supreme Court, ruling 6-1 that when the statute requires the warden to “promptly inform [defendant] in writing of any untried indictment. . . of his right to make a request for final disposition thereof,” it means exactly that.  The defendant wasn’t under any obligation to demand a trial until the warden formally notified him, and the time began to run when the warden was first informed of the indictment. 

Dillon is obviously not going to have broad application, and it has to be read in context with State v. Hairston, where the Court held that 2941.401 didn’t impose any affirmative duty on the state to find out where the defendant was imprisoned, so that it could serve him with the indictment.  It is nice to see the Supreme Court actually apply the language of a speedy trial statute as it’s written.  It would be even nicer if they’d do this with the main speedy trial statute, holding, for example, that when the statute says that the time is tolled for “any period of delay necessitated” by a defense motion, it means that the time is tolled for any period of delay actually necessitated by the motion, not just by the filing of the motion.  (A fuller exposition of that argument, as well as a cute cat picture, can be found in this post.)

So whatever happened to my case?  Nothing.  The judge held a hearing on the motion to dismiss, but by that time the defendant was out of prison and in a halfway house, a few months away from full release on parole.  The judge apparently figured that even if he ruled for the defendant, the state could take it up on appeal, and the defendant might wind up having to serve additional time, which the judge, again apparently, didn’t figure was fair.  So he sat on the case.  The next to the last entry on the docket, six years ago, is “HEARING HELD ON MOTION TO DISMISS.  HEARD AND SUBMITTED.”  The only entry after that is the one authorizing me getting paid my fees by the County Auditor.

See?  This story did have a happy ending.

Last week I interrupted the Bacchanalian fest that was my birthday to talk about allied offenses, in the context of a 1st District case which had held that a defendant could be convicted of eight counts of aggravated vehicular homicide for an accident which killed four people.  Over a biting dissent, the court ruled that four counts under recklessness and four counts under driving drunk hadn’t merged.

A different permutation on this scenario emerged in the 8th District case last week of State v. Fields, where the defendant had sought to settle a score with his wife by setting their furniture on fire.  (Yeah, I know; doesn’t make much sense to me, either.  Guess he showed her, huh?)  Unfortunately, the couple lived in a four-apartment building, and the resultant blaze spread to the other three units as well.  Fields pled no contest to four counts of aggravated arson, and was sentenced to three years on each, to run consecutively.  He appealed, arguing that the offenses were committed with the same animus — that is, he was only trying to set one fire — and thus the counts should have merged.

The appellate court agreed.  Citing a solitary case — a Supreme Court decision from 1988 involving the merger of a kidnapping and rape count — the panel held that the crimes “were not committed with separate animus” toward the other three victims, and should’ve merged.  What was most surprising about this is that the state had conceded in its brief that this was the appropriate result.

The reason that’s surprising is that the result is almost assuredly wrong.  In fact, this same court has dealt with this same situation on numerous occasions.  Five years ago, in State v. Garcia, the defendant had been convicted of setting her home on fire to collect the insurance proceeds; her two children died in the blaze.  The court upheld the trial court’s denial of merger of the three counts of aggravated arson — one count for each of the children, and one count for the occupied structure.  The court came to an identical result in a similar situation in another case that same year, State v. Poelking.

The reason for those results is simple:  as the court explained in Garcia, the multiple arson counts aren’t allied offenses of similar import because

when an offense is defined in terms of conduct towards another, then there is a dissimilar import for each person affected by the conduct.

That only makes sense.  The logical basis for the concept of allied offenses is that a defendant shouldn’t be punished twice for the same harm.  If the restraint of a rape victim isn’t any greater than that normally necessary to complete the crime, then the defendant should not be convicted of both kidnapping and rape:  the harm was the same.  If a defendant drives drunk and kills four people, as in Hundley, he shouldn’t be convicted of eight counts of homicide just because he violated two separate subsections of the same statute:  there’s still only four dead people.

But if a defendant sets fire to one apartment and three others catch fire, there’s no more problem in imposing punishment four counts of arson than there would be if he were convicted of two counts of murder when he fired at one person and wound up killing two.  There was only one intent, but the law is well within its rights to impose multiple punishments for multiple harms.

Don’t tell the prosecutor’s office that, though.

Perhaps the most interesting decision out of Columbus was a disciplinary case in which two prosecutors received a public reprimand by working out a plea bargain with the defendant — through his mother.  If she’d been representing him, that would’ve been okay, but since somebody else was, not so much.  Actually, the defendant might have been better off if she had been:  after working out a deal for five years in prison, he got the plea vacated when news of his mother’s involvement came to light.  He went to trial, got convicted, and wound up getting sentenced to eight years.  Always listen to your mother….

The most interesting case, perhaps, but not the only one.  The Court also handed down an important case on the Lemon Law, and one on the speedy trial statute for prisoners, which I’ll talk about later this week.  So let’s get to the courts of appeals.

The plaintiff was injured in a motorcycle accident, and sued three years later when he received a recall notice indicating a defect in the motorcyle which may have caused the accident; the 1st District affirms dismissal on statute of limitations grounds, holding that the discovery rule tolls the statute only for latent injuries (i.e., where the plaintiff does not know that he has been injured), not for latent defects (i.e., where plaintiff does not know why).  The 12th District affirms a default judgment of $400,000 in an attorney malpractice action based upon the attorneys representation of both plaintiffs in a criminal case, holding that the failure of one party to appeal their conviction, and the rejection of an ineffective assistance claim in the other appeal, didn’t preclude the malpractice action.  The 4th District reverses a grant of summary judgment in a defamation case, ruling that plaintiff’s claim he was fired because of false allegations of sexual harassment stated an action in defamation per se and not per quod.  And in the Yeah, I Guess Department, the 5th District upholds the denial of unemployment benefits:  the employee had been terminated for absenteeism because he’d been sentenced to 11 months in prison.

The 2nd District reverses the denial of a motion to suppress oral statements, holding that the statements, given at gunpoint, weren’t voluntary.  There’s a decent discussion in this 8th District case about the distinction between recklessness and knowing intent in felonious assault, in the case of the use of a car as a deadly weapon.  The 8th also holds that a trial court in a plea hearing is only required to inform the defendant of the maximum sentences which can be imposed on each count, and that the failure to advise him that the sentences can be imposed consecutively doesn’t void the plea.  If you’re trying to expunge an arrest record for a defendant who was acquitted, you’ll want to take a look at this 10th District case, which reversed a denial of expungement, holding that the court didn’t properly consider the balancing factors involved.

Finally, this week’s winner of the Bizarro Legal Argument, from the 10th District’s decision in State v. Warsame:

The second assignment of error asserts that the trial court erred in limiting the cross-examination and presentation of the testimony as the issue of ethnic bias among and between different tribal groups from Somalia.

I was going to do a post today about a decision last week on sexual predators, but I figured if I write one more screed on that subject, like I did here, here, and here, I’m going to wind up with the sex crimes squad parked out in front of my house.  So instead, we’ll spend the day talking about one of my favorite subjects.  Me.

As I’d mentioned earlier in the week, my birthday was on Monday.  Since it’s a practice in our family — well, with me — to celebrate the event over a month-long period, much as was traditional with the old Kings of England, My Bride and I went out for dinner on Wednesday.  It might have gone a bit better had the waitress not rushed to our table as we were finishing off the sockeye salmon to breathlessly announce, “The Chrysler Building just exploded!” an item she’d gleaned from an urgent bulletin just put up by CNN on the TV above the bar.  Well, not so much, as it turned out…  Yet another reason why I would rather shove a pencil into my ear canal than spend my time watching television news.

One nice note about the week, though.  Our lovely receptionist, who is responsible for ensuring that the birthday of everyone in the office is dutifully observed, had forgotten mine for the past two years.  She made up for it this year, getting a cake which was to die for:  some yellowcake/chocolate mixture, with buttercream and fudge frosting….  I had a trial on Monday, and we did the voir dire after lunch.  I told the jurors about the my birthday and the cake, and that I would have brought them some, but didn’t want to be accused of jury tampering.  And yes, I really did tell them that.

Speaking of juries, in addition to that voir dire, I’d also reviewed the transcript of a month-long trial the week before, which included a voir dire that had taken six days.  That got me thinking of things that people say to get them excused from the panel for cause.  Which led me to this story, about a Massachusetts man who sought to evade service by filling out a questionnaire claiming that he was prejudiced against homosexuals and blacks.  The judge’s questioning in voir dire went like this:

“You say on your form that you’re not a fan of homosexuals,” Nickerson said.
“That I’m a racist,” Ellis interrupted.  “I’m frequently found to be a liar, too. I can’t really help it,” Ellis added.
“So, are you lying to me now?” Nickerson asked.
“Well, I don’t know. I might be,” was the response.

Turned out he was successful in avoiding jury service:  the judge ordered him into custody and referred the case for prosecution.  Of course, closer to home, a Columbus man went the extra mile and actually confessed to drug addiction on the jury questionnaire, more specifically, to having ”a bad jonesin’ for heroin.”

Speaking of juries, mine came back with a guilty verdict.  Guess I should have taken them the cake.

See you on Monday, where maybe I’ll start talking about cases again, despite the fact that my birthday will only be in its second week of celebration. 

A man flees the police, hitting speeds of 100 mph, before losing control of the car and slamming into a tree.  He walks away unscathed, but his four passengers aren’t as lucky:  they’re all killed.  How do four dead passengers wind up as eight convictions of aggravated vehicular homicide?

The 1st District tried to provide an answer to that question last week in State v. Hundley, but succeeded mainly in demonstrating the absurdity of Ohio law on allied offenses of similar import.  “Allied offenses of similar import” is lawyer language for the simple idea, embodied in the Double Jeopardy clause, that you shouldn’t be punished twice for what is essentially the same crime. 

For example, take a rape case.  Rape invariably requires some restraint of the victim, and it’s typical for the state to indict a defendant for both rape and kidnapping.  That’s exactly the situation the Supreme Court faced back in 1979 in State v. Logan:  the defendant had accosted the victim, forced her at knifepoint into an alley and down a flight of stairs, and raped her.  The Court held that the “kidnapping” was merely incidental to the rape — the movement was slight, the restraint no longer than necessary to accomplish the rape, and there was no additional threat to the victim occasioned by the kidnapping.  The court concluded that there was no separate “animus” for the kidnapping, and thus it merged into the rape.  The court reached a similar result 11 years later in Newark v. Vazirani, holding that convictions for selling beer to a minor and for causing a child’s unruliness merged, because under the facts of the case the commission of one offense would necessarily result in the commission of the other.

But nine years later, in State v. Rance, the court overruled Newark, deciding that while the test involved a comparison of the elements of the two crimes, the test had to be performed in the abstract; in other words, the test was whether one crime could ever be committed without committing the other.

The absurdity of this should be apparent:  of course it’s possible to commit one crime without committing the other, because otherwise they wouldn’t be separate crimes.  And that absurdity is highlighted by what happened in Hundley last week.  The defendant was charged with aggravated vehicular homicide under two separate divisions of the statute:  driving recklessly, and driving while intoxicated.  The court concluded that, in the abstract, it was possible to drive recklessly without being drunk, and thus eight counts of homicide for four dead bodies was permissible.

Rance has been heavily criticized, even by appellate courts, in terms uncommonly vituperative for judges of an inferior court.  (One opinion observed that Rance “might not be good law, but it is the law.”)  Apparently, even the Supreme Court isn’t thrilled with Rance, because just three years ago, in State v. Adams, it declared that convictions for rape and kidnapping should’ve merged, because there was no separate animus for the kidnapping.  The decision referred specifically to State v. Logan, and applied the same analysis, despite the fact that in Rance the court expressly overruled Logan.  The Adams decision never mentions Rance or uses its test of comparing the elements of the two offenses in the abstract.  In fact, there are a number of appellate courts that have concluded that Adams overruled Rance.

It didn’t, but it should.  The Supreme Court really needs to take another look at this, and hopefully consign Rance to the dustbin.  It doesn’t make sense, and it leads to results that are simply bizarre.  As the dissent in Hundley put it,

Four people were killed by Hundley’s criminal conduct.  Nowhere this side of Oz can that amount to eight counts of homicide…. Cases such as this — which defy logic — cause normal people to wonder at the machinations of the law.

It’s not unusual for a defendant to get cold feet the day of trial, and for some a reasonable way out presents itself in the form of trying to get rid of their lawyer.  Trial judges tend to frown on such gambits, and if the defendant is insistent, may offer him the Hobson’s choice of going ahead with the attorney or trying the case as his own lawyer.  The problems with that approach are demonstrated by the 5th District’s decision last week in State v. Blankenship. 

On the morning of trial, Blankenship registered his dissatisfaction with his court-appointed attorney, in terms which were anything but subtle: 

I don’t want him as my attorney. He’s talked to me three times and all three times he’s tried to get me to plead guilty. All three times all the man’s done is tried to get me to plead guilty. He told me he don’t think I can win this case. I can’t go to court with a guy like that.

The court was just as direct in its response: 

You understand there’s not going to be any change made at this point in the proceedings? So you either have Mr. Marczewski or you can go forward by yourself. It’s up to you.

After complaining that the court was denying him an attorney, Blankenship reluctantly opted for the latter alternative.

The law on this is pretty clear:  over thirty years ago, the US Supreme Court in Faretta v. California, and the Ohio Supreme Court held in State v. Gibson, held that a defendant did have a constitutional right to defend himself, but only after the trial court has made “a sufficient inquiry to determine whether defendant fully understands and intelligently relinquishes” his right to counsel. That waiver

must be made with an apprehension of the nature of the charges, the statutory offenses included within them, the range of allowable punishments thereunder, possible defenses to the charges and circumstances in mitigation thereof, and all other facts essential to a broad understanding of the whole matter.

(The hearing to determine that is referred to as a Faretta hearing.)  The judge hadn’t done any of that, and so the case got bounced on appeal.  Interestingly, the appellate court noted that had the judge not allowed Blankenship to represent himself, but instead compelled him to trial with the lawyer he didn’t want, that decision would have been reviewed only for abuse of discretion, and may very well have been upheld.

On the other hand, there was another decision last week on allowing defendants to represent themselves, in the 6th District case of State v. Julian.  The defendant was charged with assaulting a police officer, and at his arraignment he indicated he wanted to discharge his lawyer. 

How he wound up trying the case on his own is a mystery.  The arraignment concluded with the judge stating, “I think the implication is that as of right now you [the defense counsel] are his attorney until I hear otherwise.”  When that “otherwise” happened is never indicated.  After going through the defendant’s referral for a competency examination, and the results of that examination, the appellate opinion notes that the case proceeded to trial on March 16, 2006, where “the court introduced the parties and indicated that appellant wished to represent himself in the matter.”

The court correctly notes that while Rule 44(C) requires a waiver of counsel to be in writing, that requirement can be dispensed with if there is “substantial compliance” with the rule, and determined that substantial compliance had occurred here because an implied waiver could be found from the “totality of the circumstances.”  The totality of the circumstances — at least, the facts presented in the appellate court’s opinion — don’t even allow an inference he wanted to try the case himself.  Even the arraigning judge wasn’t clear on that; my emphasis: 

You indicated through Mr. Schaffer at some point that you wanted to represent yourself or that you wanted other counsel or that you’re not wanting to proceed at this time.

As for ensuring that the defendant understood the charges, possible defenses, and “other facts essential to a broad understanding of the whole matter” before waiving, the opinion points to the fact that the trial court did tell defendant of what he was charged with, the possible penalties, and also advised him of Abe Lincoln’s homily about a client who represents himself.  Perhaps the worst part of the decision — although there are at least four nominees for that designation — is the court’s apparent belief that the competency examination, which found that Julian “was capable of assisting an attorney in his own defense,” supported its conclusion that Julian was capable of being his own attorney.

As I said, it’s certainly true that a waiver of counsel can be inferred from the circumstances, and need not be express.  But just three months ago, in State v. Brooke, the Supreme Court held

In all cases where the right to counsel is waived, the court must make sufficient inquiry to determine whether defendant fully understands and intelligently relinquishes that right.

And that’s for misdemeanors.  In a felony case, where the only thing in the record is a clear statement that defendant doesn’t want to waive counsel, it’s hard to see how that squares with the requirements of Brooke, Faretta, and Gibson.