You’re handling a criminal case, and you’ve filed for discovery.  The prosecutor responds, and also makes a reciprocal request for discovery from you.  We know that speedy trial time is tolled until the prosecutor responds to your request; is it also tolled until you respond to his?

I’ve run into several judges and defense lawyers recently who believe that the Ohio Supreme Court’s decision in State v. Palmer earlier this year means that it does.  That’s not the case.  (more…)

If you’ve been putting off that sex change operation only because Uncle Sam isn’t willing to help pick up the tab, good news might await you:  as this story relates, by the end of the year we should have a ruling on whether gender identity disorder is a medical condition, thus allowing the cost of a sex change — typically around twenty-five large — to be tax-deductible. 

The government might have fared better in opposing this if it hadn’t chosen for its expert Dr. Park Dietz.  His 15 minutes of fame came during his appearance a few years back as an expert witness for the state in the Andrea Yates case, (more…)

“Don’t be puffin’ on a doobie in your ride” was the moral lesson applied in a pair of 8th District decisions last week.  In State v. Thompson, the police stopped a car for going through a red light, and the officer noticed the strong odor of the Demon Weed when Thompson rolled down the window of his car.  When Thompson exited the vehicle — oops, sorry for that lapse into police jargon — when Thompson got out of the car, the cop noticed a cellophane wrapper containing what appeared to be crack on the center console.  The inevitable inventory search discovered more grass and crack, and the circle was pretty much closed at Thompson’s booking, where he was relieved of $1,800 in cash and a cellphone.  (As an aside, when are police and the courts going to stop regarding possession of a cellphone as evidence of drug trafficking?  My 80-year-old mother carries a cellphone, for God’s sake.) (more…)

You work out a great plea bargain for your client, but he refuses to take it.  Has this happened to you?

Probably not for at least a day or two.  It happened to the lawyer in State v. Simpson, so he decided to bail, and filed a motion to withdraw as counsel.  The trial court denied the motion, and last week the 8th District agreed and closed the door on that tactic.

The actual issue on appeal was whether the trial court had to hold a hearing on the motion.  Way back in 1969, in State v. Deal, the Supreme Court had ruled that a trial judge was required to hold a hearing if an indigent defendant raised specific objections to his appointed attorney.  The court in Simpson emphasized that the objections had to be specific; a general “I don’t like this guy” isn’t going to cut it.  In fact, the defendant hadn’t registered any complaints about his attorney, but instead relied on appeal on the fact that the court hadn’t held a hearing on the motion to withdraw.  Since Simpson hadn’t raised any objections himself, the court held, the trial judge wasn’t obligated under Deal to hold a hearing.

Simpson’s Plan B was to argue that the trial court should have granted the motion to withdraw anyway.  That contention met a similar fate.  The court noted that the conditions for mandatory withdrawal didn’t exist, which left permissive withdrawal as a basis.  The court agreed that the lawyer did allege a permissive reason for withdrawal, i.e., that “Simpson was making ‘it unreasonably difficult for counsel to provide Defendant with effective assistance’ because he was listening to the ‘advice [of] a non-lawyer’ to go to trial, rather than accept the plea.”  But that didn’t make the cut, either; it was Simpson’s right to take the plea bargain or not, and a disagreement on that score didn’t create the type of conflict which would justify the attorney in withdrawing.

So what’s a poor boy — er, lawyer — to do?  The obvious lesson of Simpson is that if you’re going to try to get off a case, your client has to be on board:  you’re going to have a tougher time selling the idea that there’s a complete breakdown in the attorney-client relationship if your client is sitting on the sidelines of that dispute.  And even then, there should be more than just a disagreement on a plea bargain.  It’s hard to fault the Simpson court on this:  as I said at the outset, a client balking at a plea proposal isn’t exactly unprecedented, and when you sign up for a case, you do so with the knowledge of that possibility occurring.  Especially when you’re retained, as the lawyer in Simpson was.

If you’re looking for a sure-fire method of getting off a case, though, look no farther than State v. Williams, in which the Supreme Court reversed a trial judge’s denial of an attorney’s motion to withdraw, where the defendant had punched defense counsel — in full view of the jury, no less — just prior to the mitigation phase of a capital trial.  There’s probably been a case or two that everybody’s had where they’d have been willing to take a beating to get off of it, so if you’re willing to go that extra mile, there it is. 

Summertime, and the blogging is easy…  At least the Monday Case Update is, because there were only about 45 court of appeals decisions last week. 

There were a couple of cases of note out of the Supreme Court.  In State v. Clevenger, the Court held that a trial judge can’t waive or suspend costs in a criminal case after sentencing.  The other case, Snyder v. American Family Ins., involves the portion of the uninsured motorists statute which says that a tortfeasor who is immune from liability (in this case, because of sovereign immunity) is an “uninsured motorist.”  Notwithstanding that, the Court in Snyder says that an insurance company can validly exclude UMI coverage in those cases. 

Now, call me crazy, but I don’t think it makes a lot of sense to have the legislature define what constitutes an uninsured motorist, and then let the insurance companies write policies which exclude that definition.  Then again, the reason for that becomes a little clearer after you read this story by Ohio Public Citizen on campaign contributions from insurance companies to Ohio Supreme Court candidates.

As for the courts of appeals, there’s a good case out of the 1st District on transferred intent – A shoots at B and hits C.  In this case, though, A shot at B and hit C’s car.  The dissent does an excellent job of discussing the history and logic of transferred intent, and argues that it shouldn’t apply to an attempt to commit a crime. 

The only other notworthy decisions are in the domestic area.  If you’ve got a civil protection order case that involves spanking, you’ll want to take a look at this case, in which the 5th District affirms the denial of an order where the trial judge found the spanking “excessive,” but not posing “a substantial danger of serious physical harm.”  The father had spanked his three-year-old daughter with his hand and a piece of wood trim, which, according to the doctor, had left “purple bruising, about five centimeters in width,” and an abrasion on the girl’s buttocks.  Spare the wood trim, spoil the child, I suppose…  Here’s another case that’s an interesting read, although its precedential value is limited to the unremarkable proposition that a court does not err in granting child custody to one parent where the other parent is batshit crazy.  And mutilating yourself, taking pictures of it, and then claiming in court that your husband did it qualifies under any definition of batshit crazy, even Blackstone’s, although I confess I didn’t look it up.

Finally, from the Department of Don’t Say You’re Sorry Unless You Mean It comes State v. Prunty, a cautionary tale from the 8th District.  Prunty had been indicted for two counts of rape and one of kidnapping a 15-year-old girl, and had pled guilty to the indictment.  He wrote a detailed letter to the judge explaining why he’d committed the offense, then decided to withdraw his plea.  The court let him and recused itself, and at the trial the state was allowed to introduce the letter.  Prunty claimed this wasn’t kosher, and in violation of Evidence Rule 410, which makes inadmissible evidence of “pleas, offers of pleas, and related statements.”  The appellate court, though, concluded that the letter came after the plea, and therefore wasn’t related.  Prunty will have plenty of time to mull over his decision-making in the case; he got convicted and was sentenced to life imprisonment.

For those of you who didn’t get the memo, a new forfeiture law went into effect in July.  It’s got it’s own special chapter, RC 2981.  In fact, one of the major purposes of the law was to consolidate the varied provisions on forfeiture, and a number of the older provisions, like forfeiture for corrupt activity, gang activity, drugs, and Medicaid fraud have been repealed and folded into the new Chapter.

The changes aren’t purely cosmetic or organizational, however.  You can get a quick-and-dirty rundown of all the changes here. 

The major thrust of the law appears to be making the forfeiture process more intelligible.  “Contraband” used to be defined broadly, as including both substances which were illegal to possess, and “fruits” of crime.  If, for example, you grew marijuana plants and sold them for money, both the money and the plants would be considered contraband.  The new law makes a distinction between the two, defining the former as contraband and the latter as “proceeds.”

Instrumentalities of a crime — items which are used to commit the crime — are also subject to forfeiture, and are probably the area of forfeiture law most subject to abuse.  For example, I have a case where my client is accused of stealing a debit card, and the prosecution has filed a petition asking forfeiture of my client’s car.  Why?  Because he used the car to drive to the ATM to use the debit card.

The new law lays out a more concrete definition of the “instrumentality” test of forfeiture:  under 2981.02(B), the finder of fact has to decide

• Whether the offense could not have been committed or attempted but for the presence of the instrumentality;
• Whether the primary purpose in using the instrumentality was to commit or attempt to commit the offense;
• The extent to which the instrumentality furthered the commission of, or attempt to commit, the offense.

That’s still fairly elastic, although the “but for” test should provide some help.  In my case, for example, I can argue that while driving to the ATM was the easiest method of getting there, it most certainly wasn’t the exclusive one available.

There’s some basic stuff about forfeiture that you have to know here, though.  The “instrumentality” test is only general tests for determining whether an item in those circumstances should be forfeited. The other is the proportionality test, which essentially compares the value of the property sought to be forfeited with the gravity of the defendant’s crime, and gauges whether forfeiture would run afoul of the 8th Amendment’s proscription of excessive fines.  (This case gives an excellent, if slightly dated — it’s a 1995 decision – rundown of the differences in the theories, as well as a comparison of in rem versus in personam forfeiture.)

There are obviously circumstances where one test might be preferable to the other, and the nice thing with the new law is that you get to argue both.  The definition of the instrumentality test is quite helpful, but if you look at 2981.01(A)(2), you’ll see that one of the purposes of the new law is ”to ensure that seizures and forfeitures of instrumentalities are proportionate to the offense committed.”  So pick your battles wisely.

The other day I was sitting over at the Justice Center, waiting for a prosecutor to show up for a pretrial, when I overheard two other lawyers talking about the birthdays they’d just had.  One had turned 77 the week before.  The other topped him; he was 78.  I went in and told the bailiff that if she saw my sorry butt in these halls ten years from now, let alone twenty, she had my full consent to beat me to death with a tire iron.  She smiled sweetly and said, “Do I have to wait the ten years?”  Probably not…  Frankly, at this point I’d rather spend my declining years saying “Welcome to Wal-Mart” than hustling appointed crack pipe cases at $400 a pop.

But thoughts of my impending mortality gave way to glee when I read this story:

Proceedings have been delayed in a California misdemeanor case in which the defense is claiming that police brutalized their client with a stun gun during his arrest at a shopping mall last year. That’s because the defense team is now being criminally investigated for allegedly violating human experimentation laws by repeatedly using a stun gun on their client themselves during an evidence-gathering effort in a law office.

As the Daily Bulletin of Ontario, Calif., recounts the story, “The revelation came after a bizarre court hearing on Wednesday in which the attorney, Peter Schlueter, played a videotape showing his police tactics expert, Roger Clark, repeatedly zapping the client inside Schlueter’s San Bernardino office.” Clark also reportedly tasered Schlueter and his twin brother.

Although there are any number of clients I would’ve liked to Taser during my career, I don’t think I would’ve been dumb enough to tape me doing it, and then show it in court. 

Thoughts of that led me, naturally, to the contest over on PrawfsBlog to name your favorite bad legal argument.  One of the best was an oral argument before the 7th Circuit a couple of years back, in which the defendant’s counsel was contending that the police use of a drug-sniffing dog on the defendant’s car during a traffic stop was an unreasonable search.  This argument might have fared better had the Supreme Court not issued the decision in Illinois v. Caballes, rejecting that very contention, just a few months earlier.  The hopelessness of the attorney’s cause is demonstrated by this exchange:

Judge Sykes: Any way to distinguish [Caballes]? I mean I understand that you object to the premise.
Lawyer: I hope you can find one.
Judge Bauer: Well, what you want us to do is overrule the Supreme Court.
Lawyer: I want you to help me distinguish it, Judge. I am very disturbed.
Judge Bauer: You can be disturbed on your own free time. Why are you intruding on mine?

Here’s a link to the actual oral argument; right-click on oral argument, choose “Save Target As,” then download it and play it on your audio player.  It’s only about five minutes.  After listening to it, you won’t be so surprised to learn that the attorney was arrested for cocaine possession about six months later.

My nominee for bad legal argument, at least of the past week, would be the 10th District’s decision in State v. Tillis.  In reviewing the evisceration of appellate review of sentencing wrought by State v. Foster, the court said that appellate review was still available to correct an abuse of discretion, and gave this helpful example:

For instance, if a trial court gave disparate sentence based upon race, gender or some other suspect classification, review for abuse of discretion would be appropriate.

Yeah, I suppose if you were handling an appeal where the trial judge said that she was giving a harsher sentence to a defendant because he was black, you could argue abuse of discretion.  You might also want to throw in the language of 2929.11(C), which specifically prohibits a court from basing a sentence on race or gender.  And then there’s that pesky Equal Protection Clause in the 14th Amendment of the US Constitution…

Probably the only thing I’ve whined about more frequently than the idiocy of the current sentencing laws and decisions is the idiocy of the current laws and decisions on sexual predator designations.  Well, it turns out that beginning next year, I won’t have as much to whine about.

Why?  Because on January 1, 2008, Ohio’s new sexual offender classification system takes effect.  Instead of a risk-based system — one which attempts to gauge the chances of recidivism of an offender — it becomes an offense-based system:  an offender’s classification, and duty of registration, is based solely on the type of sexual crime committed.  It basically sets up three classifications:  “Tier I sex offender/child victim offender,” “Tier II…,” etc., with 15-year, 25-year, and lifetime registration requirements, respectively.  Voyeurism will land you on Tier I, rape on Tier III.  What’s more, the new law scraps the recently established Juvenile Sex Offender Registry and Notification System; anyone 14 or over gets placed on one of the three tiers.

The motivation for this was money:  it brought Ohio into compliance with the federal Adam Walsh Child Protection and Safety Act, and when Congress passed that act, it stipulated that any state which enacted the law by July 27 (Ohio’s was signed by the governor on June 30) would get a 10% bonus in grants created by the Walsh Act.

Turns out that’s 10% of nothing:  Congress hasn’t appropriated any money for the Act.

One would think that the logical starting point for a massive revision in sex offender registration would be some empirical research into how the current system is working.  If one thought that, though, one would be wrong.  What research has been done has not shown that sex offender registration laws have any effect whatsoever on the one thing they’re supposed to affect:  the incidence of sex crimes.  In fact, as I mentioned several months ago, there’s some basis for believing that they’re actually counterproductive, in that they force sex offenders “underground,” making them that much harder to track.

I’ll have more on this as the new year gets closer.  I’m looking forward to it every bit as much as you are.

There is probably no area of criminal law right now that makes less sense or is more confusing than sentencing.  I wrote last week about the Ohio Supreme Court’s determination that sentences imposed without adequately apprising the defendant of post-release controls are not merely voidable, but void — a complete nullity.  That in turn was prompted by the Supreme Court’s decision a month ago in State v. Bezak, which held that a defendant who’d served his term of imprisonment couldn’t be brought back before the trial court so that it could properly impose post-release controls.

But what about before the sentence is completed?  RC 2929.191, which went into effect in July of last year, allows a judge to bring the defendant back to properly impose PRC.  That has its own perils, as the 1st District noted last week in State v. Bond last week, in which it dealt with a defendant who’d been sentenced in 1999 to eight years in prison.  The trial court hadn’t properly imposed PRC in 1999, so it used the new statute to bring the defendant back, and imposed PRC at that point. 

The problem?  As the 1st District noted, the defendant has to be brought back for a new sentencing hearing:  the judge must re-sentence the defendant completely, not just add the PRC language.  The judge hadn’t done a complete re-sentencing in this case, so the 1st District concluded that PRC had never been imposed, and since in the interim the defendant had completed its prison sentence, it couldn’t be ever be imposed, as Bezak holds.

But as I pointed out last week, this creates all sorts of problems down the road:  can a prosecution for having a weapon under disability be based upon a “void” drug conviction?  That thought was raised in Judge Painter’s concurrence in Bond: 

So now we have perhaps hundreds of inmates serving void sentences. What might happen next?

Well, here’s a thought:  It could get worse.  When the legislature passed 2929.191, it also amended the basic PRC statute, 2967.28, to provide that PRC is automatic:  a judge no longer has to specify its imposition at the time of sentencing.  As I explained last year when the bill was passed, though, there’s a good chance that this is unconstitutional. 

Why?  Because PRC involves the executive branch — the parole board — imposing a punishment, a function normally reserved to the judicial branch.  The Supreme Court has recognized that this creates a separation-of-powers problem.  To get around it, it followed the fiction that it was really the courts which were imposing the punishment PRC provides — or, more accurately, empowering the parole board to impose those punishments — by specifying PRC in their sentences.  The amended version of 2967.28 doesn’t even recognize the separation of powers problem.

In another five years, you could wind up with a whole bunch more people who have had PRC unconstitutionally imposed, by virtue of the new 2967.28, and whose sentences are therefore void, and who cannot be resentenced. 

Justice Lantzinger was one of the three dissenters in Bezak, and noted that she was “extremely troubled by the majority’s application of the term ‘void’ to Bezak’s case.” I think her troubles are just beginning.

No decisions of note out of the Ohio Supreme Court, not even a nice disciplinary case or two to munch on, so let’s get straight to the courts of appeals decisions:

On the civil side, The 6th District reverses the grant of a motion in limine and summary judgment in a malpractice case, holding that simply because the plaintiff’s doctor was in a different specialty from the defendant did not allow exclusion of his expert testimony.  The 1st District holds that the Juvenile Court could assess GAL fees against the parents in a custody fight, but couldn’t hold them in criminal contempt for not paying them.  The 8th District reverses a summary judgment and holds that a non-compete covenant for a physician is not automatically invalid as against public policy. 

In criminal cases, the 9th District affirms a conviction for tampering with evidence where the defendant threw drug evidence away as he fled from the police.  The 3rd District upholds a community control sentence in a conviction for gross sexual imposition against an appeal from the state that the presumption for imprisonment should have been invoked.  The 9th District also holds that a court need not determine that the child is competent before admitting his statements made for purposes of medical treatment under 803(4); this issue is currently pending before the Ohio Supreme Court.  The 4th District upholds the trial court’s decision to shackle the defendant during trial; the decision’s a little questionable (one judge dissented), but it has a decent review of the law on the subject.

I Think They Covered This in Criminal Procedure:  One of the assignments of error in State v. Hall was that the defendant’s conviction of attempted rape was against the manifest weight of the evidence. 

The defendant had pled guilty.

This week, I’ll take another look at what remains of judicial review of sentencing post-Foster, and do a quick-and-dirty review of the new forfeiture law.  Catch you then.