July 2007 Archives
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
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.
If you've got a criminal case where you're thinking of using a polygraph examiner -- and, more significantly, getting the state involved in that -- you definitely want to take a look at the 10th District's decision last week in State v. Madison.
Although lie detectors once seemed poised to have a profound effect on criminal justice, the law on them has changed very little in the past thirty years. The lead case on it is still the Ohio Supreme Court's decision in the 1978 case of State v. Souel, which held that a polygraph result is admissible only when the parties stipulate to its admission.
Of course, the other side isn't going to stipulate if they know that the results are going to hurt them, so the normal procedure is to stipulate in advance of the test being taken. That's what happened in Madison, where the defendant was accused of rape. The prosecution and defense agreed that both the defendant and the alleged victim would underGO polygraph testing.
As you might guess, the defendant flunked. (The opinion never mentions how the victim's exam went.) Madison's still a good read, though, because it answers a number of issues that arise in this context.
First is the fact that it wasn't just the polygraph itself that was the defendant's problem. Not only had Madison's test results indicated deceptiveness, but he gave a number of incriminating answers in the interview. He claimed on appeal that the admission of those answers was improper, and that the examiner should have been limited to testifying about the test results. The court wasn't buying it; as those familiar with the procedure know, the examiner conducts an extensive pre-testing interview. The stipulation had expressly mentioned that "the examination process may involve a series of interviews," and the court held this meant that Madison "was on notice that he would be interviewed by law enforcement personnel and the results of the interviews could be used against him."
The second question was the jury instruction for polygraph evidence. The Souel court had held
If such evidence is admitted the trial judge should instruct the jury to the effect that the examiner's testimony does not tend to prove or disprove any element of the crime with which a defendant is charged, and that it is for the jurors to determine what weight and effect such testimony should be given.
The court didn't have much more trouble with that one. Since the defense hadn't requested the instruction, the plain error test applied, and the court found that the judge had told the jury something quite similar to that, although it's not clear from the opinion as to whether he told them of it in the jury instructions or at the time the expert testified.
This case may demonstrate the practical perils of the polygraph, as much as the legal issues surrounding its use. In fact, if the defense lawyer had gotten the full story from the client, it's doubtful that he would have stipulated to a polygraph in the first place; during the interview Madison indicated that
he had oral and anal sex with [J.H.] and that during the oral sex [J.H.] wanted to stop and smoke more crack, but Mr. Madison did not stop. Mr. Madison claimed he held a box cutter to J.H.'s throat, but did so during an argument about drugs, not to encourage or force her to have sex with him.
This was obviously a "date rape" situation where the issue of consent -- and the defendant's perception of whether he had consent -- was muddied. Plus, since the polygraph essentially uses nervousness as a measure of deception, that could have been picked up just through the associated criminal activities the incident had involved.
I've used a polygraph in cases, and I know lawyers who use them with some regularity. There are some situations where a case can be resolved through a stipulation on its usage, but you've got to pick your spots. And it's a pretty good idea to have your client submit to an examination or two by your own expert before you go talking to the prosecution about a stipulated test.
Over a year ago, in one of my first posts on this blog, I discussed the 8th District decision in Zappitelli v. Miller, in which the a trial court had instructed a jury that they couldn't award attorneys fees unless they also awarded punitive damages. The 8th District reversed, holding that attorney fees were a proper measure of compensatory damages in fraud cases, and could be awarded even if punitive damages weren't. I mentioned at the time that that conclusion was "questionable," in light of the case law, and last Wednesday, the Ohio Supreme Court, obviously heavily influenced by what I'd written back then, reversed the 8th District in a 7-0 decision: if the jury doesn't give you punitive damages, they can't give you attorney fees, either. Sometimes I'm right, and when I want to remember the times that I'm wrong, all I have to do is look at my brokerage statement...
The other big decision out of the Supreme Court was the one on post-release controls, which I talked about on Thursday, so let's take a spin around the courts of appeals and see if anything down and dirty shows up.
If you're contemplating an abuse of process case, the legal hurdles of that are amply demonstrated by the 6th District's decision in Sullivan v. Tuschman, holding that even the defendant's suit "is motivated by ill-will or bad faith, or is entirely frivolous, it is not legally sufficient to support a claim of abuse of legal process." I did a post on this subject about a year ago, which goes into more detail; you can find it here. Interesting decision from the 8th District on when a buyer is entitled to specific performance on a breached contract for the sale of a house, but be sure to read the dissent.
In the criminal area, the 6th District reverses a judge's finding of criminal contempt against a lawyer for appearing an hour-and-a-half late for trial, holds that it was indirect contempt, and he was thus entitled to a hearing. The 12th District reverses the imposition of a fine because the trial court failed to conduct any inquiry into defendant's ability to pay it. 2nd District reverses a sentence because the trial court failed to ask defendant if he had anything to say before imposing sentence. These failure to give the defendant the right to allocution reversals happen about once a month; in fact, the same district reversed another case on the same grounds just last week. I'll bet a lot of the defendants come up with something to say that really changes the judges' minds.
And, in the Clothes Make the Man Department: In rejecting the defendant's contention that the trial court failed to inquire as to whether he knowingly waived his right to appear at trial in civilian clothes, the 6th District focused on the court's colloquy on that matter, which began
THE COURT: "The record should reflect that Mr. Collins is in a Lucas County Corrections Center jumpsuit. Mr. Collins, were you given an opportunity to put on civilian clothes?"
APPELLANT: "Your Honor, ain't no clothes going to free me. The facts will free me, so I'm not worried about no clothes."
Don't know what the clothes might have done, but the facts didn't help: the defendant was charged with two counts of rape, one of aggravated burglary, and one of kidnapping, and the jury convicted him of all four.
And finally, sometimes the syllabus doesn't adequately summarize a case, and sometimes it does, like this one from the 1st District:
In an action for medical malpractice based on injuries sustained when the patient's head caught on fire during electroconvulsive therapy, the trial court erred in granting summary judgment to the doctor responsible for administering the therapy...
Hard to quibble with the opening line from the always-reliable Judge Painter's opinion: "Medical treatment should not involve setting a patient's head on fire."
By the way, today's my birthday. I sent a memo to the other attorneys and staff in the office, telling them that I don't want anybody to spend more than $50 for a present for me. I don't anticipate any problems with compliance.
One of the reasons I enjoy criminal law is that the clients are generally an interesting lot. I'm handling an appeal for someone who's a resident of one of the finer institutions the Department of Rehabilitation and Corrections offers, and I recently got a letter from him. One of his requests was that I write all future letters to him in Spanish, since that's his native tongue. Not mine, alas. I mentioned this to another attorney, but he claimed he could top it. No way, said I. Then he'd explained that he'd recently gotten a letter from his client, who was sitting in County Jail, instructing him on a long list of motions that the attorney was to file, and closing the letter with the admonition, "Do it now, bitch!"
A heat wave isn't conducive to wanting to spend a lot of time writing and researching stuff, even in an air-conditioned office, so this is one of those Fridays where I just sort of go wandering around the Internet to see if there's anything interesting out there. And there always is. Like, for example, this data supplement to the 2005 report of the White House Drug Czar. (Don't even ask how I found it.) It's chock-full of helpful information. For example, if you look at Table 45 (which is on page 37 of the pdf file), you'll find that way back in 1981, a dealer could purchase 10 grams of 12% pure heroin for just a tad more than $10,000. By 2003, after the expenditure of hundreds of billions of dollars in the war on drugs, a dealer could buy 10 grams of 46% pure heroin for about $1,390.00. As a retail purchase, a gram went for $1,974 back in 1981; in December of last year the Los Angeles Times reported that it was running as low as $90 a gram.
Turning to the news, there's an interesting twist to the case of Genarlow Wilson, the Georgia honor student who was sentenced to 10 years in prison for having consensual oral sex with his 15-year-old girlfriend when he was 17. (I've talked about the case before, here and here.) The conviction was based on a video that someone else had taken (the incident occurred at a party), and at the trial the state prosecutor released about 30 copies of the tape to the news media, believing it was required under the state's open records act. Might have been a bad move, according to this story: the USDA has determined that the tape is child pornography under Federal law, and "would 'neither confirm nor deny' whether there was a criminal investigation related to the tape's release."
And last, from the Department of Maybe It Wasn't a Good Idea to Have the Defendant Testify, we bring you the recent case of State v. Devaughns. The defendant had been convicted of felonious assault and kidnapping, and given maximum, consecutive sentences, which seems to have been fairly warranted: his girlfriend showed up at the hospital with "two fractured ribs, a collapsed lung, blunt force trauma to the chest wall, burns on her arm, multiple bruises, and a fractured and dislocated finger" after having been "hit, kicked, and beaten with an impact wrench and a table, and burned with hot water" by the defendant. He took the stand at trial, and after responding that "the government" paid child care for his children, he was asked,
Q. And that's under the name of James Dozier.
A. Yes, that's correct. It's really complicated.
Q. Why do you suppose it's complicated?
A. Because that's not my real name. I have two identities. It's kind of screwing me up. A lot of pressure and I snap.
Q. Are you saying that when you beat Lynelle with that table, it was because you snapped?
A. No. I'm going to say I don't remember beating her. I don't. I actually don't. I'm saying this, I feel bad about that, but I'm not saying I did it.
Sometimes it seems as though not a week goes by without some case coming out on the arcane technicalities of imposing post-release controls in Ohio. Well, this week didn't go by without one, either: the Supreme Court ventured back into those troubled waters yesterday in State v. Bezak.
As the legions of faithful readers of this blog know by now, in order for post-release controls to be validly imposed, the trial court must do so, both orally at the time of sentencing, and in its journal entry of sentencing. Failure to do either invalidates the imposition of controls.
According to the five members of the majority in Bezak, it does more than that. Bezak had been sentenced to six months in prison for a 5th degree drug felony, and the trial judge's statement regarding post-release controls had been something less than a model of clarity:
You'll be out in the not too distant future, at that point you won't have a -- probably will not be on post-release control given that it's a six-month sentence, but I can't guarantee that.
On appeal, the 8th District bounced the case back, holding that the case "must be remanded for resentencing so that appellant may be advised that he is subject to post-release control." And this is where things got funky. Bezak filed a motion to reconsider, asking that the language after "resentencing" be stricken, arguing that he was entitled to a whole new sentencing hearing. The 8th District disagreed, holding that the only thing required at the resentencing was that Bezak be properly advised about post-release controls.
And the Ohio Supreme Court disagreed with that and found that Bezak's argument was the correct one: because the law requires the judge to properly advise the defendant about post-release controls, and the judge hadn't done that, the law had not been complied with, and accordingly Bezak's sentence was void. That meant he was entitled to more than just a hearing where the judge would intone the magic language about PRC and send him on his way. He was entitled to a whole new sentencing hearing.
I've expressed concerns before about the Court's cavalier use of the word "void" in regard to sentencing issues. As the Court explained,
The effect of determining that a judgment is void is well established. It is as though such proceedings had never occurred; the judgment is a mere nullity and the parties are in the same position as if there had been no judgment.
Justice Lanzinger, one of the two dissenters (O'Donnell was the other), found herself "extremely troubled by the majority's application of the term 'void' to Bezak's case." For good reason, on at least two counts.
First, there's a lingering question about Foster remands: can a judge give the defendant more time on a remand? That's an open question, and the one decision I've seen on that, discussed here, didn't do a very good job of analyzing the constitutional issues involved in imposing a stiffer sentence upon a defendant who successfully appeals. Declaring that the first hearing was void, and in essence pretending that it never happened, isn't helpful to that analysis. Say a defendant pleads to rape, and gets a six-year sentence. He appeals, his conviction is reversed because the judge didn't tell him about PRC, and the case is remanded. This time the judge maxes him out with a ten-year sentence. It's questionable if that result could survive the "vindictiveness" analysis of the cases I mentioned in the earlier post (and here's another link to it, in case you were too lazy to click on it the first time). But the argument might be that a vindictiveness analysis depends upon comparing the second sentence with the first, and here there is no "first" sentence, because it was a nullity. Thus, the judge is free to do anything he wants the second time around.
While that view of "void" would certainly be harmful to defendants, there's another way in which it could be beneficial. What if Bezac had never appealed his sentence? We all know that, in Ohio, a conviction doesn't actually take effect until sentencing. If the sentencing was void, rather than merely voidable, does that mean that the defendant was never actually convicted of the crime?
That has special significance for Bezak: since he'd already served his sentence by the time the appeals were done, he wasn't subject to resentencing. Does that mean he wasn't convicted? If void means what the Supreme Court says it does, then a good argument can be made that he wasn't.
I've always had an interest in economics, and one of the current fads in that field -- apparently, an attempt to rid itself of its reputation as "the dismal science" -- is to apply economic formulations to other areas of the social sciences. Right now, I'm reading a book called The Myth of the Rational Voter, by Bryan Caplan, an economist at George Mason University. As is widely known, the level of political knowledge among the American public is abysmal: a majority can't name a single branch of government; nearly half don't know that states have two senators, and three out of four don't know the length of a Senate term. More than half can't identify their congressman, and forty percent can't identify either of their senators.
Caplan refines and develops the economic theory for this: a person's desire to become informed on a particular subject hinges on his expectation of a benefit from acquiring that knowledge. If I carefully research a stock before buying it, I'm likely to be rewarded by making money. (Hasn't happened yet, but that's what all the books say.) What's my reward for carefully researching presidential candidates, though, especially given that there's no chance of my vote making a difference in who wins the election? I could have spent hundreds of hours in 2004 deciding whether to vote for George Bush or John Kerry, and it wouldn't have made any difference: George Bush still would have won, regardless of how I voted. Since there's no penalty for my being politically ignorant (and no reward for being politically knowledgeable), it's more rational to invest my time in other pursuits.
If there's such a thing as a rational voter, then it makes sense to study the idea of the rational killer, too. Despite widespread acceptance of the belief that capital punishment has no deterrent effect, several recent studies have concluded the contrary. One, by Naci Mocan, a professor of economics at the University of Colorado, found that each execution prevented five homicides; other studies have produced results claiming that each execution saves as many as eighteen lives.
To be sure, the validity of the new studies is still hotly disputed: links to the studies can be found here, and links to critiques of them can be found here. If there is some validity to the them, however, it throws a monkey wrench into the moral debate on capital punishment. That argument has so far centered on whether the death penalty is morally acceptable. As some people, including University of Chicago Law Professor Cass Sunstein, an opponent of capital punishment, have pointed out, if the death penalty does in fact deter homicides, it might be morally required.
And, of course, economic studies have ventured into the broader area of explanations for crime in general. A few years back, the authors of Freakonomics advanced the view that the decline of crime in the 80's and 90's was the result of the legalization of abortion. Now Doug Berman's Sentencing Law & Policy blog points us to a news story about another theory -- the decline was due to the government attempts to eliminate lead poisoning:
The theory offered by the economist, Rick Nevin, is that lead poisoning accounts for much of the variation in violent crime in the United States. It offers a unifying new neurochemical theory for fluctuations in the crime rate, and it is based on studies linking children's exposure to lead with violent behavior later in their lives.
It's not quite as goofy as it sounds, although admittedly it does sound goofy. Just to be on the safe side, I've decided to modify my client questionnaire for criminal cases. Question 42 now reads,
As a child, I preferred to eat (circle one): potato chips paint chips
I'll let you know what I find out. Hell, I might even use the results to write a paper in an economics journal.
... as indicated by a bevy of decisions handed down in various Ohio districts last week. First up is the 2nd District's decision in State v. Ayers, affirming the trial court's designation of the defendant as a sexual predator almost a decade after his conviction for kidnapping. Ayers wasn't a choirboy by any stretch; as the report of the psychologist on the predator designation noted:
[Ayers] dragged the victim to the living room and gagged her using strips of cloth. He then dragged her upstairs to a bedroom, where he tied her to the bed by her wrists and ankles and sexually assaulted her. The victim reported Mr. Ayers then grabbed her dog and put the dog's head between her legs. He told the victim he was going to kill her in the morning and asked if she preferred to die by being burned in the bed or by being suffocated or drowned. He also told her of his plan to dispose of her body so he would not get caught for the crime.
So I think the court was on pretty firm footing in concluding that the "used cruelty" criterion of RC 2950.03(B) was established.
The rest of the opinion, though, is where you run into problems. The psychologist had opined that a prior criminal record was a strong indicator of a tendency to reoffend, which was a problem because Ayers' criminal record consisted of convictions for petty theft, trespassing, and domestic violence, all misdemeanors without any apparent connection to sexual offenses. The defendant, though, had also been charged with rape on two occasions, and the court held that these could be considered, too, notwithstanding the fact that defendant had not been convicted of them.
Prior history was also relevant in State v. Blanchard, another decision affirming a predator designation, this time by the 8th District. There, the defendant, who was in a mental institution at the time, flashed a social worker, and then attacked her, trying to pull off her clothes before being restrained. He'd claimed that he was doing this not for sexual release, but because he was "acting out" in an attempt to get discharged. (Not sure of the thought process there, but then again, a clear thought process isn't exactly the hallmark of people in mental institutions, is it?) Blanchard had tried the same routine once before, had been charged with gross sexual imposition, but had been found incompetent and unrestorable. The trial court found that the prior conduct, coupled with a STATIC-99 score indicating a high risk of reoffending, was sufficient to warrant a predator designation. Given that the appellate court review is limited to the question of whether the judgment was supported by "some competent, credible evidence," that was enough for the appellate panel to uphold the decision.
To be blunt, this whole area of law is a mess. As mentioned, the court in Blanchard found the high STATIC-99 score significant, yet as I've noted before the 8th District on numerous occasions has dismissed a low score, at one point noting that the test is "of practically no worth in predicting the risk of sexual recidivism." The fact that the offense involves multiple victims has been used in numerous cases as a justification for imposing a predator designation, but the psychologist in Ayers testified that there's "no proven correlation" between that and the likelihood of a repeat offense. That leads one to wonder just which of the 2950.09(B)(3) factors are based upon solid empirical data. Probably not many, considering that the entire sexual predator law is based on the notion that strangers pose the greatest danger of predation, when in fact over 80% of sexual abuse is practiced by relatives or others known to the victims.
And why are we doing all this in the first place? That was brought home in another 8th District case last week, Lyndhurst v. Rapoport. Rapoport was convicted of downloading child porn in 2005, and was branded a sexual predator. He was 54, and it was his first offense, so he was given probation, but a year later the City of Lyndhurst sought to evict him from the house he and his wife had lived in since 1979 because the house was within 1000 feet of a pedestrian walkway owned by a local school; as the appellate court explained,
In essence, the City claimed that although Rapoport did not live within 1,000 feet of Sunview School, Rapoport did live within 1,000 feet of a pedestrian walkway, which is part of the Sunview School premises.
The trial court's grant of summary judgment to the city was affirmed.
So what we have is a designation based upon criteria which have not been empirically validated, and reviewed under an appellate standard so deferential as to virtually insulate the trial court's decision from review. All of this is to regulate where sexual offenders are allowed to live, which all of the available evidence to date, as I pointed out a few months back, indicates has no actual effect on child abuse, and may actually be counterproductive in that regard.
The US Supreme Court is closed for the summer. I'd mentioned that I was going to do a review of their term, but in looking at it, about the only significant non-death penalty criminal decision handed down was Brendlin v. California, which I'd already discussed here. Of course, there were a number of other major decisions, and Justice Kennedy's drift to the right has caused great consternation in liberal quarters. If you want some serious talking head discussion on that subject, you can check out this panel discussion by the American Constitution Society, which concludes with the non-motherly observation that "if this is the birth of a new constitutional era, all I say is what an ugly baby." Those with a desire to understand the newly-developing alignments on the court in a less verbose form can check out this graphic from the AP, which tells us, among other things, that in non-unanimous cases Kennedy voted with Alito and Roberts nearly three-quarters of the time, while voting with Ginsberg only 48%, and with Stephens only 38%, of the time.
As for the Ohio Supreme Court, they had a decision last week on the effect of a dismissal for lack of personal jurisdiction. That's a dismissal without prejudice, since it doesn't go to the merits of the suit, and the rule is generally that a dismissal without prejudice doesn't create a final appealable order, since a plaintiff can simply refile. The 8th District had applied that rule to dismissals for lack of personal jurisdiction, but in National City v. AAAA, the Court sided with the 12th District and held that a plaintiff could appeal from a decision tossing out their suit for lack of personal jurisdiction.
In the court of appeals, the 2nd District holds that failure to grant the defendant the right of allocution before imposing sentence requires reversal and a remand for resentencing; betcha what the defendant finally gets to say is going to make a big difference. The 2nd District also held that arrests, even when they don't result in convictions, can be considered by a court in determining whether to label someone a sexual predator; I'll have more on that later this week. The 6th District holds that penetration of the labia is equivalent to penetration of the vagina sufficient to constitute rape. Make a special note of this one, as it's sure to come up in your practice: the 5th District holds that the statute prohibiting owners from allowing their animals -- in this case, a pig -- to run at large isn't a strict liability offense. The 12th District points out that a trial court must not only advise the defendant at sentencing of post-release controls, but also advise him of the effect of the violating those controls; failure to do so requires a remand for resentencing.
Last, if you want to change your eye color to match that nifty blue suit on the days you wear it, you're going to have to get a doctor's prescription: the 6th District holds that a prescription is required even for "zero-powered" or cosmetic contact lenses, rejecting the claim of the defendant, Star Beauty Supply, that only lenses which "correct human vision" are subject to state control.
Two weeks ago, the US Supreme Court handed down the decision in Rita v. US, which I discussed here. Victor Rita was convicted of perjury and obstruction of justice. Rita had no other criminal record, had served 25 years in the armed forces, during which he received 35 commendations and medals of various types. The guidelines provided for a sentencing range of 33-41 months. The judge imposed a sentence at the bottom end of that range. The Supreme Court affirmed that result as a reasonable outcome, Justice Scalia opining that Rita got a "relatively low sentence."
Last week, President Bush commuted the sentence of Scooter Libby, who had been convicted of perjury and obstruction of justice. Libby's sentencing range was 30-37 months, and again the judge had imposed a sentence at the bottom end of that range. In doing so, the president asserted that the prison sentence was "excessive," that commutation was warranted because of Libby's lengthy history of public service, and that Libby's having to remain on probation and pay his fines still represented a "harsh punishment."
In short, while Bush's Justice Department was arguing that Victor Rita's sentence was appropriate and that factors like prior service to the country were an inappropriate basis for a reduction, Bush himself came to the opposite conclusion.
As this New York Times article indicates, the Libby commutation may have been a gift to defense lawyers: it's led to the creation of the "Libby Motion," in which the defendant argues for a lesser sentence, essentially on the basis that the President of the United States has determined that the consideration of various factors can render a guidelines sentence "excessive."
what's astonishing is that the factors Bush relied on in commuting Libby's sentence are the same ones that the administration has aggressively sought to preclude judges from considering when imposing sentences on everyone else.
What's particularly fascinating about this is that the first case in which this argument will be used is that Mohammed Salah, who is scheduled to be sentenced next week on one count of obstruction of justice for his role in a scheme to aid the terrorist organization Hamas. His lawyer argues,
What the president said about Mr. Libby applies in spades to the case of Mohammed Salah. We'll definitely be bringing it up to the judge. ... It's going to be a real test, a first early test of whether we're a nation of laws or a nation of men.
Well, if the judge doesn't buy it, they can always make their pitch to the Decider.
In what is probably one of the Signs of the Apocalypse -- right between the beast out of the earth and the lamb on Mount Sion with the 144,000 -- the 8th District last week reversed a trial court and held that an in-court identification was impermissibly tainted by a suggestive out-of-court ID process, in State v. Williams. I'm not exaggerating the rarity of such an event. I had this as an issue in an appeal I did earlier this year, and researched over 100 cases on it. I found exactly one where the identification was tossed. It involved a 74-year-old woman who testified at the hearing that she'd identified the defendant in a lineup, a claim that was called into question when the police officer testified that no lineup had in fact been conducted.
In Williams, the victim had been robbed of three $100 bills at gunpoint late at night. He testified at trial that the robber had approached him from behind and placed a gun to his head, removed the bills, then fled in in a car. The victim gave the description of the car and the robber to the police, who apprehended the defendant a few hours later. They took him to the victim's house, and the victim stated that he was "100% certain" that this was the man who'd robbed him.
As most criminal lawyers know, showups or "cold stands," where the witness is shown a single person, are universally regarded as suggestive: as the court noted in this case, since the police had asked the victim, "If we get the guy, can we bring him by for you to look at," the victim could have concluded that since the police brought the defendant to his house, they indeed thought he was "the guy."
Whether the identification procedure is suggestive is only one aspect, though; the other is whether the circumstances surrounding the identification show that it's reliable, notwithstanding the suggestiveness. These are the Biggers factors, which are:
(1) the witness's opportunity to view the defendant at the time of the crime; (2) the witness's degree of attention at the time of the crime; (3) the accuracy of the witness's description of the defendant prior to the identification; (4) the witness's level of certainty when identifying the defendant at the confrontation; and (5) the length of time elapsed between the crime and the confrontation.
The court actually did a good job of sifting through these factors, rather than simply going along with the lower court's determination. There's not much sense in going into detail on the court's analysis; these types of cases are very fact-dependent, and the specific facts that the court found here aren't going to be of broad application to others. Suffice it to say that the court seems well-justified in its conclusion that only one of the Biggers factors -- the level of certainty -- was shown here, and that it was counterbalanced by the absence of other factors, especially the slim opportunity the victim had in actually seeing the robber. The discrepancies and lack of corroboration -- no gun was found, and although the officer testified at the suppression hearing that the police recovered three $100 bills from the defendant at the time of his arrest, at trial he testified that no bills were in fact recovered -- also played a large role. Williams does have some value in that context, simply because it gives you a case you can show a trial judge where the court threw out an identification. Those cases are few and far between.
But there are several other important aspects of the decision. It's been my experience that there is an increasing tendency among prosecutors, at least around here, to only call the police officers at the suppression hearing, rather than the witnesses themselves. The theory apparently is that this prevents the defense from getting a free shot at cross-examination of the state's witnesses. That's true, but as Williams points out, it's not without potential cost:
By producing only the arresting officer, and not the victim, at the suppression hearing, the State presented evidence only as to the fact that the policeman heard the victim state that he was "100% certain" of his identification (the fourth factor listed above). In short, if we analyze this suppression issue solely upon the evidence adduced at the suppression hearing, this identification should have been suppressed.
Had the defendant pled no contest at that point, he would have won the suppression issue on appeal. That's not quite as significant as it might appear, though, for a couple of reasons. First, just because the police officer testified to only one factor here doesn't mean that the actual witnesses are always required for the other factors. Since hearsay is admissible at a suppression hearing, even things like the opportunity of the witness to view the perpetrator at the time of the crime, as the witness relayed to the officer, could come in. Furthermore, if the court overrules the motion, unless the defendant wants to plead no contest and take it up on appeal at that point, it doesn't make any difference: as the appellate court noted, since there was a trial, the appellate court had to consider the evidence presented at trial in determining the identification issue.
What's probably more significant about the Williams decision is the clarity of the opinion, and how it defines the trial court's (and the appellate court's) role in suppression issues. There's a tendency to let juries ultimately resolve identification issues; unless the out-of-court identification procedure is truly egregious, the trial court will decide that whether the identification was reliable is a credibility issue to be hashed out by the jury. Similarly, appellate courts tend to view a conviction as dispositive on that issue: if the jury believed the witness, they must necessarily have concluded that the identification was reliable.
As Judge McMonagle points out, though, the issue of the reliability of the identification is initially not one of weight, but of admissibility, and the trial court acts as a "gatekeeper," deciding what should be submitted to the jury. The trial court here didn't do that; as the opinion notes,
The court held at the conclusion of the suppression motion that the factual inconsistencies in the identification were credibility questions for the jury, when, in fact, the law requires the court itself to analyze the inconsistencies to determine whether the questionable show-up likely led to misidentification.
Similarly, the fact that the jury apparently concluded that the identification was proper is of no consequence in the appellate court's determination of the issue:
A jury is not instructed that a show-up is a widely condemned practice. A jury is not instructed to analyze the five factors articulated in Biggers in assessing the reliability of the identification. While a defense attorney may argue to a jury that an identification is unreliable (or a prosecutor may argue that it is reliable), juries do not engage in legal analysis; they deal in factual analysis. Accordingly, the fact that a jury found appellant guilty is not dispositive of the validity of the out-of-court identification.
As I said, the difficulty in using other decisions in these types of cases is that the cases are usually so fact-dependent that the decisions wind up having little precedential value. So forget about the facts in Williams; far more important is the court's treatment of the law. It's by far one of the most significant decisions on out-of-court identifications that's been handed down by any Ohio court in recent years.
A family came into our office three years ago. Their 93-year-old aunt had died a month earlier, and while going through her papers they'd found a canceled check for $350,000, payable to her life insurance agent. We wrote the guy a letter asking him where he put the money so we could include it in the estate. His lawyer wrote back and told us it was a gift.
Yeah, surrrre. The aunt had lived through the Depression, and was one of many people for whom that was a quite formative event in their financial decision-making: the family told of finding drawers full of sheets of aluminum foil that she'd used and smoothed over so they could be used again, and the most anybody in the family got for Christmas was a check for fifty bucks. So the idea of her bestowing 350 large on her insurance agent, strained credulity, shall we say.
The normal course would have been to file an action in probate court to recover the money as an asset of the estate, but there's an alternative: back in 1993, the Ohio Supreme Court, in Firestone v. Galbreath, recognized a cause of action for wrongful interference with inheritance, the elements of which are
(1) an existence of an expectancy of inheritance in the plaintiff; (2) an intentional interference by a defendant(s) with that expectancy of inheritance; (3) conduct by the defendant involving the interference which is tortious, such as fraud, duress or undue influence, in nature; (4) a reasonable certainty that the expectancy of inheritance would have been realized, but for the interference by the defendant; and (5) damage resulting from the interference.
The civil action has some advantages over the probate action. We sued the defendant's employer under respondeat superior and for negligent supervision, and we asked for punitive damages, neither of which could have been done in probate court. And, of course, we got a jury trial. The case went to trial in April of last year, and the jury had no trouble finding against both the agent and his employer for the full amount. They tacked on $60,000 in punitives against the agent, and the court awarded attorney fees and prejudgment interest on top of that.
The only real legal argument the defendant advanced on appeal (the case against the employer was settled) was that the action was dependent upon a determination that the will was valid, and only the probate court could do that. The 8th District shot that argument down last week and affirmed the judgment in Sull v. Kaim.
As might be expected, there's very little Ohio case law on this subject since Firestone was handed down. Indeed, just three years ago the 4th District held in Roll v. Edwards that an action for wrongful interference with inheritance couldn't be maintained unless the plaintiffs had first exhausted their remedies in the probate court, a position flatly at odds with Firestone.
Needless to say, this isn't something that's going to come up often, but you should be aware of it. It came in real handy for us.
One of the many differences between WalMart and this blog is that this blog will be closed for the holiday tomorrow. I'll be back on Thursday with a review of the US Supreme Court's 2006 term. See you then.
The US Supreme Court has wrapped up its 2006 term, and I'll have some posts this week about that. The Ohio Supreme Court had one decision of significance, holding in Olynyk v. Scoles that the "double dismissal" rule, which prevents a plaintiff from refiling a complaint that has been previously voluntarily dismissed more than once, only applies where both previous dismissals have been under 41(A)(1)(a); if the previous dismissal was by court order or stipulation of the parties, a "notice" dismissal won't bar refiling.
I discussed this case a few months back after oral argument, and also last year when the 8th District ruled on it. As I mentioned then, one thing to keep in mind is that the savings statute, RC 2305.19, also has a "one-time" rule: you can't use it more than once. So even if you don't run afoul of the double-dismissal rule of 41(A), if your second dismissal would require you to rely on the savings clause a second time, you're out of luck.
In the court of appeals, the 1st District holds that a defendant's fear that he will be given more time at sentencing because he got indicted for several counts of drug trafficking after his plea doesn't give him a basis for withdrawing the plea. The 10th District upholds a trial judge's dismissal of a domestic violence case; the court had set the matter for trial at 10:00 AM, and dismissed it when the state's witness failed to appear by 11:50 AM. The 3rd District reverses a community-constrol sanction sentence for 4th-degree felony cocaine possession because the judge didn't make the findings required by RC 2929.13(D) to overcome the presumption of imprisonment.
On the civil side, the 10th District holds the statute of limitations in a medical malpractice claim begins to run when the potential tortfeasors are identified, even if it's not determined until later that those tortfeasors committed malpractice. The 8th District reverses a trial court's grant of arbitration in a consumer action against an auto dealer, holding that a claim that the agreement to arbitrate is unconscionable is a challenge to the existence or validity of the agreement, and therefore requires a hearing under RC 2711.03. The 5th District affirms summary judgment for a hospital, holding that it had no duty to make sure invitees had a safe means of ingress and egress from the parking lot across a public thoroughfare.
The next time you hear somebody criticizing judges for being too wordy in their opinions, you can point them to Judge Painter's dissent last week in the 1st District's decision in State v. Payne. The defendant had shot someone, and the majority upheld his conviction of two counts of felonious assault, holding that the two counts -- one for using a deadly weapon and the other for causing serious physical harm -- weren't allied offenses. Judge Painter's dissent reads, in toto,
One gun, one shot, one felonious assault.
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