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!”

Way.

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.”  As noted in this article in Slate,

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.