Short note today.  I’m taking the day off, since I’m getting a new desk for my office at home.  The long-anticipated wait for the AT&T man is scheduled for today, too, to find out why I’ve been without phone and internet service there for the past week.

So just a couple of followups.  First, there was another decision from the 8th District last week, State v. Day, that you might want to be aware of, especially if you’re a judge.  On a criminal plea, not only do you have to advise the defendant that he has the right to present witnesses in his defense, but you also have to advise him that if they’re unwilling to appear, they can be compelled to do so by subpoena.  This isn’t actually a new result — the first ruling like this was about a year ago — but since compulsory process is a “substantial right,” strict compliance with Rule 11 in this regard is required.  Not doing it will get the case automatically bounced.

Second, here’s something to munch on.  A month ago, I discussed the Supreme Court’s decision in State v. Bezak, in which the Court held that a failure of the trial judge to properly impose post-release controls at the time of the sentencing made the sentence invalid, and required resentencing. 

What was interesting about the decision is its holding that if the judge failed to say the right words about PRC, the sentence wasn’t merely voidable, it was void — a nullity, as though it hadn’t happened.  (In fact, the opinion says “the trial court must resentence the offender as if there had been no original sentence.”  My emphasis.)

In Bezac’s case, that wasn’t possible, because he’d already served his time.  But, as I mentioned last month, in Ohio a conviction doesn’t become effective until sentence is imposed.  Does this mean that Bezac wasn’t ever convicted of a crime?  I brought that up in a conversation with a couple of the boys over at the appellate division of the Prosecutor’s office, and they’re concerned about the validity of that argument.

And rightly so.  Let’s say you have a client charged with having a weapon under disability, based upon a 1998 drug conviction.  You check the journal entry, and find that it says nothing about post-release controls.  (Or it does, but you check the sentencing transcript and it’s not mentioned there.  Remember, a trial judge has to do both.)  Under Bezac, that means the sentence was a nullity, but since your client served his time, he can’t be resentenced, either.  Since Bezac says the sentence was void, you’ve got an argument that the judgment of conviction is void, and if the conviction’s void, you no longer have a weapon under disability charge.

Something to mull over.  See you on Monday.

It’s always interesting to see my clients coming to grips with some of life’s lessons.  Earlier this week, for example, one of them learned that when someone approaches you and says, “I need to go over to E. 152nd St. to buy some crack.  Will you drive me there?,” of the two possible answers, the wiser one is “no.”  And last week, another one of my clients learned that it’s not a good idea to get arrested for a new drug case two days after you’ve pled guilty to one.  When confronted with the fact that the judge’s thoughts on disposition had changed radically, the client decided that he wanted to vacate the plea in his first case.

Helpfully, just the day before the 8th District had handed down a decision on vacating a plea, State v. Lowe.  As most criminal lawyers know, with motions to vacate a plea, as in comedy, timing is everything:  a motion to vacate after sentence is imposed should only be allowed in ”to correct a manifest injustice,” but should be “freely and liberally granted” if made before sentence.

Unfortunately, ”freely and liberally” doesn’t mean what it sounds like, because just about every week there’s a decision or two from some appellate court in Ohio affirming a trial court’s denial of a pre-sentence motion to vacate.  That’s what happened in Lowe, as a matter of fact:  the defendant pled guilty to aggravated murder and some other charges, then changed his mind and asked that the plea be vacated.  The judge denied it and sentenced him to life without parole, and the 8th District affirmed.

The opinion does give a non-exclusive set of criteria by which the trial courts are to consider such motions:

(1) whether the accused is represented by highly competent counsel; (2) whether the accused was given a full Crim.R. 11 hearing before entering the plea; (3) whether a full hearing was held on the motion; (4) whether the trial court gave full and fair consideration to the motion; (5) whether the motion was made within a reasonable time; (6) whether the motion sets out specific reasons for the withdrawal; (7) whether the accused understood the nature of the charges and possible penalties; and (8) whether the accused was perhaps not guilty of or had a complete defense to the charge or charges.

Some of these are obviously relevant, especially the latter.  Introducing some evidence of a defense virtually guarantees that the plea will be vacated, as the 9th District held back in March in State v. Wheeland, where it reversed the denial of a motion to vacate in a shaken-baby case where the defense produced two witnesses who testified that the child’s mother had confessed to them that she might have done it. 

Actually, the Lowe criteria aren’t as helpful as they might seem at first glance, because they appear to have been cobbled together from a number of other cases.  (Wheeland contains a slightly different, and a bit more cogent, list.)  It’s not clear why any special weight should be given to whether counsel is “highly” competent, let alone what that means.  The issue of “whether a full hearing was held on the motion” is mooted by the fact that the court has to conduct a hearing.  Given the usually short lapse of time between the plea and the sentencing, what’s a “reasonable time” for the filing of a motion?  It’s one thing to say that a motion to vacate is untimely because it was filed eight months after the defendant became aware of the judgment against him, but is a motion to vacate a plea untimely because it was filed three weeks after the plea instead of one or two?

That allusion to a civil motion to vacate isn’t far-fetched, because the same competing interests are involved:  finality versus the the interest in resolving cases on their merits.  On the one hand, the finality concern is perhaps a little stronger in this context.  After all, it’s not like the defendant has defaulted through oversight, such as failing to file an answer; here, a defendant has walked into court and pled guilty to a crime.  In many cases where a defendant later seeks to vacate the plea, there’s been some indication of his uneasiness at the plea hearing, and if the judge has considered that and gone out of his way to make sure that the defendant knows what he’s doing, that should count for something.

On the other hand, we’re not talking about somebody getting a money judgment here, we’re talking about somebody’s liberty, so the counterbalancing interest in ensuring that cases are decided on their merits takes on much more weight.  To be sure, an appellate court is somewhat limited in this, because a trial judge’s decision can only be reviewed for abuse of discretion.  Still, given that such relief should be “freely and liberally” given, a less deferential attitude might be in order.

Every week, the Ohio Supreme Court hands down anywhere from two to six published decisions:  carefully crafted opinions brimming with reasoned prose, serving as precedential beacons to guide the lower courts.

At least, that’s the way it’s supposed to work.

Sometimes you also need to check the unpublished decisions, though.  Those are the ones in which they either accept or reject cases for review, the latter outnumbering the former by about a 19-1 ratio.  Last week, John Martin, who does a super job as the head of the appellate division for the Cuyahoga County Public Defender’s office, tipped me off that the Court had rejected a bunch of appeals which raised the issue of whether the decision in State v. Foster could be applied retroactively to defendants who’d committed their crimes before Foster was decided, but were sentenced after it was handed down.

For those coming late to the party, imagine this scenario:  Joe commits a robbery in 2005, is caught, and brought to trial in February of 2006.  At that time, Ohio law provides that the sentence for robbery is between two and eight years, but that he can’t be given more than a minimum sentence unless the judge finds that he caused serious harm to the victim.  The day before he goes on trial, the legislature changes the law to eliminate the “serious harm” requirement.  Joe is convicted, and the judge gives him the max.

Joe claims on appeal that applying the change in the law to him violated the Constitution’s Ex Post Facto Clause: at the time he committed the crime, he was entitled to the minimum sentence unless the judge found that he caused serious harm, and that’s the law that should have applied to him.  Joe’s got a real good argument; in fact, the US Supreme Court decided a roughly similar case like that back in 1984, in Miller v. Florida, holding that any change in the law which disadvantaged a defendant couldn’t be applied to him retroactively.

Something similar happened with Foster.  Before Foster, a first-time offender was entitled to a minimum sentence unless the judge made certain findings.  Foster held that was judicial fact-finding, barred by Blakely v. Washington, and simply read that out of the statute; in other words, the judge no longer has to (or can) make any findings.  The result is that a first-time offender can be given more than a minimum sentence.  (The Court did the same with the presumptions against maximum and consecutive sentences.)  Does this mean that Foster violates the Ex Post Facto Clause when it’s applied to someone who committed their crime before the decision came down?

There are some differences, of course:  Miller involved a statutory change, while Foster is of course a judicial opinion.  There’s also case law, though, holding that a judicial opinion which creates an “unforeseeable” change in the law cannot be applied retroactively, although that’s more properly labeled a due process rather than ex post facto violation.  The lower courts in Ohio, which have repeatedly rejected the ex post facto argument on Foster, have primarily hung their hats on that argument:  Foster wasn’t unforeseeable, because the US Supreme Court decisions in Apprendi v. New Jersey in 2000 and Blakely in 2004 “gave notice” that a change in the sentencing law was forthcoming.

There are all kinds of problems with that argument.  Prior to Foster, every district except the First had rejected the contention that Blakely invalidated Ohio’s sentencing scheme.  As for Apprendi, Nostradamus himself couldn’t have predicted that it would affect that scheme; the first time Apprendi was even mentioned by any Ohio court was a week after Blakely came down.

That’s not to suggest that the argument that applying Foster to cases arising before it was handed down is airtight.  Foster didn’t simply change the law, as a legislature would, it held that the law was unconstitutional.  While a defendant may have a right to have the law as it existed applied to him, he certainly doesn’t have the right to have an unconstitutional law applied to him — he can’t claim that he’s entitled to judicial fact-finding before a more-than-minimum sentence is imposed on him, if judicial fact-finding violates his Sixth Amendment rights.  The net result of buying into the ex post facto argument here is that no first offender who committed his crimes before Foster could be given more than a minimum sentence, and that no one (again, pre-Foster) could be given maximum or consecutive sentences, because all of those required judicial fact-finding, which is no longer allowed.  And that’s going to be a tough sell.

The identity of the buyer is the next question.  John advised me that the Ohio Public Defenders Office is deciding whether to seek certiorari in the US Supreme Court from the spate of rejections last week, or just go into habeas.  I think that’s a no-brainer.  As Doug Berman over at Sentencing Law and Policy has pointed out, the US Supreme Court is the most pro-defendant sentencing court in the country.  Maybe the only one, in fact.

One thing to keep in mind.  If you’re representing a defendant who committed his crimes before Foster was handed down, you’ve got to preserve the issue, which means raising it at trial as well as on appeal.  If you need some language and law for it, you can check out the Memorandum in Support of Jurisdiction that was filed by the OPD in this case.

By the way, sorry this is getting up on the site relatively late for today.  I’m now into my 6th day without home internet or phone service, as AT&T is surpassing standards of suckitude which even I had thought them incapable of achieving.  I had this half-written last night when I left the office, but forgot to save it, and it was lost when Microsoft decided I needed an update to my office computer, and also decided it needed to reboot the computer after installing it.

I think the Luddites might have had a point.

A woman calls 911 and claims that her husband is beating her.  The police come, arrest the husband, and take him away.  The next day the woman tells the police that it didn’t really happen, and she doesn’t want to press charges.

Not an unusual situation by any stretch; it happens all the time.  In fact, it’s becoming increasingly common for police and prosecutors to apply pressure to the woman, and to threaten her with her own set of criminal charges if she should insist on recanting.  That’s exactly what happened in State v. Manzell:  after the defendant was indicted for felony domestic violence, the alleged victim recanted.  The prosecutor charged her with falsification, and she pled guilty, and was sentenced to thirty days in jail.

The prosecutor then went ahead with the case against the initial defendant, and got a conviction, using the testimony of the same witness his office had just successfully prosecuted for falsification.

The central argument of the defense on appeal was that the prosecutor had engaged in misconduct by relying on perjured testimony in order to obtain the conviction.  This theory is based largely on the Supreme Court decision in State v. Iacona, which held that

The knowing use of false or perjured testimony constitutes a denial of due process if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury. . . Such a claim is in the nature of an allegation of prosecutorial misconduct, and the burden is on the defendant to show that (1) the statement was actually false; (2) the statement was material; and (3) the prosecution knew it was false.

The State countered that the victim had been convicted of falsification, rather than perjury, a distinction that’s lost on me.  To their credit, the appellate court didn’t put much stock in it, either.  The majority rejected the defense argument, though, noting that the defense strategy had been to use the falsification plea to destroy the victim’s credibility; in essence, that the defense efforts in that regard made it unlikely that “the false testimony could have affected the judgment of the jury.”

There’s some merit to the majority’s argument.  Actually, this is a highly unusual case of the use of perjured testimony: unlike Iacona and every other case I’ve seen on this issue, here the defense was aware of the fact that the prosecution was using false testimony.  And, of course, there’s an argument that it wasn’t false at all:  we don’t know whether the victim was telling the truth when she said the defendant had struck her, or when she pled guilty to a charge that she wasn’t telling the truth when she said the defendant had struck her.

Still, to me it just doesn’t pass the smell test to prosecute and convict someone of making a false statement, and then turn around and prosecute and convict someone else based on the premise that the statement was in fact true.  This led to a number of absurdities, as the dissenting judge points out:

The prosecution of this matter put Deputy Flowers, the charging law enforcement officer, in a particularly  untenable position. As a prosecution witness in the case against appellant, the deputy testified on direct examination that “[a]ll of our evidence said” that domestic violence had occurred.  However, the deputy later affirmed during cross-examination that he “believe[d] Shela had, in fact, lied and made a false report of domestic violence.”

What happened here might be technically legal, but it doesn’t make sense, and it doesn’t sound right.  And those last two should count more than being technically legal.

This is going to be a little shorter than usual.  I didn’t have phone or Internet service to my home this weekend, for reasons that AT & T can’t quite explain.  They assure me they’ll fix the problem — by Friday.  Last Thursday I spent over an hour with a guy from Westlaw trying to figure out why it won’t do the same things that Lexis will, and on Saturday I went out to eat and ordered the tuna medium rare, whereupon I was told that the cook only prepares it rare.  Not that there’s a problem with service in this country or anything.

So let’s get to it.  Two decisions from the Supreme Court last week, the first holding that a speeding ticket need not allege that the speed was unreasonable for conditions, the second reversing an 8th District decision and holding that a defendant in a civil case who asserts that he wasn’t served properly doesn’t waive that defense by participating in the litigation.  I’d reviewed the oral arguments in the Supreme Court a couple months ago, and I talked about the problems with the appellate court’s decision when it first came out, so reversal wasn’t a surprise.  On to the courts of appeals…

Several criminal decisions of note:  6th District gives a good summary of case law regarding advising a defendant of PRC at a plea hearing, holds that court’s statement that defendant may have up to 5 years of PRC, when PRC was mandatory, was sufficient when coupled with written plea agreement that correctly advised defendant of term… 2nd District reverses trial court’s grant of motion to suppress, holds that exigent circumstances permitted police to pursue defendant into house in drug arrest… 8th District reverses because trial court permitted detective to give opinion testimony as to witness’ truthfulness… When cop stops car for expired plate and finds out that driver isn’t owner, further intrusion of asking for driver’s ID is “minimal,” says 9th District… A LEADS report qualifies under the business records exception to the hearsay rule, 12th District holds, also reviews other court decisions on that subject.

In the only civil decision of note, the 8th District reaffirms that employment-at-will doctrine not overridden by employee handbook, also rejects promissory estoppel argument in wrongful discharge claim.

And from the Department of Cases I Never Finished Reading:  the opening line in last week’s decision by the 8th District in Dinucci v. Lis:

The case at bar stems from a dispute between neighbors involving the capture and eventual safe release of a house cat.

In doing my Case Update, which appears here every Monday, I’ll skim over all the personal injury, criminal, and civil procedural cases that have come out of the Ohio courts during the proceeding week.  “Skim” is the operative word; I’ll read the summary, maybe some of the headnotes.  Most times, if I see that the major discussion in a criminal case is the insufficiency or weight of the evidence, I’ll skip it, because getting a case reversed on that basis offers about the same odds as Britney Spears getting inducted into MENSA. 

But lightning does strike, and last week it struck twice in the 8th District.  The first case was State v. Harris, involving a DWI stop in which the police recovered a gun under the front passenger seat, resulting in the prosecution and conviction of Harris, the passenger, for CCW and having a gun while under disability. 

It’s quite common for everyone in a vehicle to be prosecuted if the police find dope or guns in it, and everybody usually concentrates on the concept of “constructive possession”:  basically, if you can reach it, you’re deemed to have possessed it.  As the court notes in Harris, there’s another element, though:  the state also has to prove that the defendant knew that the contraband was there.  The court pointed to the total absence of any evidence indicating that Harris was aware that the gun was there:  it was under the seat, and he didn’t make any furtive movement or show any other signs, such as nervousness, indicating that knowledge.

Harris isn’t a get-out-of-jail free card, to be sure.  But if you’ve got a case involving this issue, it’s a must-have, because it clearly shows that the police have to do more than than simply point to the fact that the defendant was in the car where the stuff was found.

The second case, State v. DeLuca, sounds like something out of Animal House.  Greg and Michelle Roppell had gone to have their taxes prepared by Ralph DeLuca, their accountant of 20 years.  Michelle gave DeLuca a “friendship hug” upon entering his office.  Forty-five minutes into their work, Greg asked to use the restroom, and DeLuca got up and directed him upstairs.  The court’s opinion picks it up from there:

Michelle testified that as appellant was heading back to his desk he asked her for another hug, and she got up walked over to him and gave him a hug. As they were hugging, appellant slid his hands down her pants and underpants and squeezed her buttocks. Michelle testified that appellant then slid his hands up her sides, pulled up her  shirt and bra, and sucked on her breasts for about 15 seconds. Michelle explained that the encounter ended when she pushed appellant away, and that appellant laughed and said that he had been waiting twenty years to do that.

DeLuca probably should’ve waited another twenty years; he wound up getting convicted of two counts of gross sexual imposition and being branded a sexual offender.  The court vacated his conviction, though, noting that Michelle had specifically testified that

appellant did not use any force to put his hands down her pants, up her shirt, or to pull her bra up. None of her clothing was ripped. She testified that neither she nor appellant said anything during the encounter.

No force, no GSI.  There was also an interesting twist to the issue of the lesser included offense, simple sexual imposition.  That crime involves no element of force.  It does, however, require some proof beyond the victim’s testimony.  The corroboration requirement, as the court notes, “is a threshold inquiry of legal sufficiency to be determined by the trial court and is not a question of proof for the factfinder.”  In other words, it’s a legal question for the judge to decide, not a factual question for the jury.  Since there wasn’t any corroboration here, the court couldn’t charge, and the jury couldn’t convict, on sexual imposition.

I’m not sure that Deluca has much applicability, simply because the facts are so bizarre.  If you’ve got a case like this, you’ve got a far more interesting client base than I do.

The police get a call saying that a guy in a red shirt and blue jeans is selling drugs from a green Oldsmobile at the corner of East 40th and St. Clair.  They go to East 40th and St. Clair, and sure enough, there’s a green Oldsmobile parked at the corner, and a guy in a red shirt and blue jeans sitting inside it.

Does that give the police the right to make a stop?  It depends on who they got the call from, as the 8th District’s decision a couple weeks back in State v. Melvin shows.

Given that the vast majority of police activity depends upon information they receive from others, rather than the officers’ own observations, it makes sense that the various sources of that information might control how the 4th Amendment is applied.  Basically, as Melvin explains, people who provide information to the police fall into three broad categories:  the anonymous informant, the known criminal informant, and the identified citizen informant.  (The court cites the Ohio Supreme Court decision in Maumee v. Weisner, which gives a much more detailed analysis of this split.) The first two require some showing of reliability:  generally, the police can’t make a stop based on the tip unless they are able to corroborate some aspect of the tip pertaining to criminal activity.  In the example of the guy in the red shirt and jeans in the green Oldsmobile, if the tip was anonymous, it wouldn’t be sufficient to permit a stop unless the police also observed something indicating drug activity.

That makes sense; since the tipster is anonymous, there’s no penalty to him for giving false information, and thus no reason for him to be reliable.  The opposite is true for the identified citizen informant:  if a person’s going to identify themselves to the police, there’s more likelihood that what they say is true, and so the police have a right to rely on it without further corroboration.

That’s pretty much what happened in Melvin:  a citizen informant had called and said he’d observed two males pull up to a house, go into the house and retrieve an “item,” which they then put in the trunk and drove away.  The informant had observed this on about a dozen prior occasions over the previous few weeeks, and the police testified this was consistent with drug activity.  They responded to the call, saw the car, pulled it over, and found twelve grams of marijuana in a glass jar in the trunk.  (I don’t know about you, but I feel much safer just reading that.)

Melvin, one of the two people in the car, contested the stop.  The court noted that the evaluation of a tip actually involves two considerations:  the reliability of the tip, and its content.  Here, the reliability aspect was met by the fact that the tip was from an identified citizen informant.  Two members of the court found that the content was insufficient, though:  observing someone putting an “item” in a trunk, without any further description of that “item,” wasn’t enough to believe that drug activity was taking place.

Melvin‘s an excellent read on the subject of tips and police stops, but it’s also interesting on another point.  After the police found the marijuana, they told the two subjects that they were under arrest for “violation of state drug law,” and asked if any of them had any other contraband, implying that if they ‘fessed up now, rather than having it discovered at the jail, they wouldn’t be charged with it.  Melvin was dumb enough to believe this, and volunteered that he had two packets of cocaine in his shoe.  (The cocaine was actually what he wound up being charged with.)  The state argued that he thus consented to the search, but the court found that there was no basis for an arrest — the amount of marijuana found was a minor misdemeanor, and the police can’t arrest someone for a minor misdemeanor, except in narrow circumstances which weren’t present here.  Since Melvin couldn’t have been arrested, Melvin’s consent on the basis of his erroneous belief that he could be wasn’t voluntary.

The state might could have argued the issue of arrest more strenuously.  It’s obvious that the police weren’t arresting Melvin for simple possession of marijuana, but for trafficking in it, which is a felony and thus an arrestable offense.  Whether he could have been convicted of it on such a small quantity is another question, but guilt isn’t relevant; the only issue on the search is whether the police had probable cause to make an arrest.

That’s a tricky question in itself.  On the one hand, the identity of the “item” had been resolved:  it was definitely drugs, and coupled with the police testimony that transporting it around in this fashion was consistent with drug activity, that might have been to establish probable cause for a trafficking arrest.  On the other hand, that argument would be a much easier sell if the trunk contained a kilo of coke instead of a half-ounce of marijuana in a glass jar.  Besides, all that still do the state any good: since the stop was ruled illegal, everything flowing from that is a fruit of the poisonous tree.

I didn’t care for the opinions of Justice Rehnquist, God rest his soul, but he was right on the money with his observation that court decisions on warrantless searches are “something less than a seamless web.”

I don’t usually do disciplinary cases here, but there were a couple which caught my eye the past week or so.

The first case is Cleveland Bar Assn v. McMahon, which involved McMahon’s representation of a client in an automobile accident case.  The insurance company insisted that their driver, Jerri Marrs, wasn’t at fault, although she’d been ticketed.  In an effort to persuade them of the contrary McMahon sent the company a letter reciting the transcript of Marrs’ appearance in the municipal court, in which she readily acknowledged she had been to blame for the accident.

There was only one problem:  Marrs had never appeared in the municipal court.  McMahon had fabricated the entire thing. 

McMahon had been practicing for 32 years without any prior disciplinary record.  No harm was done, because the insurance company checked the municipal court docket and found that Marrs hadn’t even appeared, and so rejected McMahon’s fictionalized version of what had transpired there.  The opinion indicates that “[McMahon's] misdeeds. . . occurred during a particularly stressful period,” but doesn’t explain what that stress was.  The board recommended a six months stayed suspension, the but the Court imposed an actual suspension for that time. 

It may be that McMahon is intended as a warning shot across the bow, much as the Court did 12 years ago in the Fowerbaugh case, where it laid down a flat Syllabus rule that where misconduct involved “dishonesty, fraud, deceit, or misrepresentation. . . an attorney will be actually suspended from the practice of law for an appropriate period of time.”  The opinion in McMahon closes with the observation

Lawyers who choose to engage in fabrication of evidence, deceit, misrepresentation of facts, and distortion of truth do so at their peril. They are admonished that the practice of law is not a right, and our code of professional misconduct demands far more of those in our profession.

Of course, the Court’s citation to numerous cases in McMahon where a lesser sanction has been imposed for those offenses is an implict acknowledgment that Fowerbaugh doesn’t really mean what it says.  Maybe it does now.  Then again, the the myriad factors which come into play in disciplinary cases demonstrate the wisdom of Justice Resnick’s dissenting view in Fowerbaugh that the Court’s function is “to give guidance as to what conduct constitutes a violation of the Disciplinary Rules,” and not “use syllabus law to mandate a particular sanction once a violation has been found.” 

The result in the second case is more questionable.  Disciplinary Counsel v. Rafidi involved a Youngstown lawyer who was representing a Mr. and Mrs. Glenn in a bankruptcy.  A cousin of Mr. Glenn, named Richard North, came to visit them.  A couple of nights later, DEA agents showed up at the Glenn’s house and told them that North had been arrested for drug trafficking, and asked to search the house.  Glenn consented, and the next day went to the DEA office for an interview.  Glenn got the impression the agents were accusing him of involvement in the drug scheme, so he terminated the interview and called Rafidi.

Rafidi quoted him a fee of $500 to talk with him, but accepted $250.  During the conversation, Rafidi asked if North was represented by counsel.  Without telling Glenn, Rafidi subsequently visited North in jail, and agreed to represent him for a $20,000 fee.  He did not disclose the dual relationships to either client, and obviously didn’t get a waiver of the potential conflict from them.  Glenn was never contacted further by the DEA, and wasn’t charged with anything relating to the crime.  The Court’s opinion notes that “respondent was able to negotiate a plea for reduced charges, and North received a prison term significantly reduced largely through respondent’s efforts.” 

Again, the board recommended a six-month stayed suspension.  Again, the Court rejected those recommendations, and instead imposed an actual suspension of six months. 

Rafidi obviously violated the rules against soliciting clients and representing multiple clients with conflicting interests.  On the other hand, there certainly was nothing particularly flagrant about Rafidi’s misconduct.  Although he’d only been practicing since 2000, he didn’t have any prior disciplinary record, either.  This is certainly not the first case involving solicitation or conflict of interest, but the Court’s opinion doesn’t contain any discussion of precedent as it pertains to the appropriate sanction, and in fact cites not a single prior decision on either of these issues.  The entire explanation of why the Court felt harsher discipline was warranted is contained in two sentences:

Respondent committed multiple ethical violations when he failed to disclose conflicts in his representation of two clients and he took advantage of an incarcerated individual’s vulnerability to further his own monetary self-interest. We find that these actions warrant a stricter sanction than the stayed suspension recommended by the board.

It seems to me that a sanction for a disciplinary case should primarily include a consideration of the harm done by the violation and the lawyer’s record of misconduct.  In both cases here, and especially in Rafidi’s, the court does a poor job of explaining why those factors warranted the sanction that it imposed. 

In Fowerbaugh and other cases, Justice Resnick had argued that substantial deference should be paid to the board’s decisions as to the appropriate sanction.  It’s a closer call in McMahon’s case than Rafidi’s, but a legitimate argument could be made that the Court would have acted more appropriately had it exercised such deference in both cases. 

Got another letter from my good friend Ryan Zempel.  As I explained a while back, Ryan’s puts out a newsletter for the Institute for Legal Reform, a lobbying group agitating for reform of the tort system.  Perhaps in light of the recent escapades of Michael Vick, this is a poorly-chosen metaphor, but the ILR has a dog in this fight:  they’re an affiliate of the US Chamber of Commerce, which has been a champion of business interests for decades.  My blog caught Ryan’s attention when I posted a note about how personal injury law has substantially devalued the concept of personal responsibility, but apparently Ryan didn’t read enough of the rest of my stuff to realize that I’m not exactly a toadie for big business, either. 

At any rate, in his latest email Ryan breathlessly informed me that the Ohio Academy of Trial Lawyers — which consists largely of members of the personal injury bar — was changing its name to the “Ohio Association for Justice” in an attempt to conceal its “true agenda.”  Well, that might be, but in this case the accusation has a bit of the pot-kettle ring to it.  If the truth in advertising laws were enforced here, OATL would be named the Ohio Association of Ambulance Chasers, and Ryan would be writing a newsletter for the Institute to Screw Consumers.

As you may have gathered, this is one of those days when instead of telling you in mind-numbing detail about some recent case, I’m going to just surf the net and inform you of some of the legal-related stuff floating around out there.  Well, actually, I will tell you about some recent case, although not in mind-numbing detail.  It’s the 12th District’s decision last week in Jordan v. Civil Rights Comm., in which a dentist appealed the commission’s finding that he’d engaged in sexual harassment of a dental assistant, which was summed up as follows:

Smith testified that appellant constantly followed her around the office and, on the second day, grabbed her from behind and pulled her against him. Appellant stated to Smith that his wife was going on vacation and suggested that Smith should meet him at a restaurant called The Dock in Chillicothe. Smith also testified that appellant frequently invited her over to his home to show her his horses and described to her in detail the horses’ breeding habits. According to Smith, appellant repeatedly  suggested that she “needed a sugar daddy” and that he had several friends that would “drop money” on her if she had sex with them.

Additionally, Smith testified that appellant talked to her about taking Viagra and that the “prostitutes in Vegas hated when men took Viagra because it wore them out.” She claimed appellant stated, “he couldn’t tell anything about my body type because he hadn’t seen me undressed.” Smith testified that appellant wanted to show her nude photos from the internet and told patients that she used to work in a strip club.

The dentist didn’t deny doing any of this, he simply argued that it wasn’t sufficient to establish the “severe and pervasive” element under the hostile environment theory.  You know you’re in trouble when your defense in a sexual harassment case is not that you were crude and offensive, but that you weren’t crude and offensive enough. 

But let’s take a break from the the law, and go back to roaming the Internet, where we find things like this story, which tells about the Connecticut chapter of the NAACP raising a stink because the state’s Commissioner of Public Safety has a coffee cup with a Confederate flag on it. 

Well, that’s overstating it a bit:  the mug is a souvenir cup purchased by the Commissioners sons during a trip to Gettysburg, and features a painting of Pickett’s charge, in which the Confederate soldiers, for some reason, are carrying a Confederate flag; the flag in question is about the size of a postage stamp.  Now, I’m not a fan of the Confederate flag by any stretch; I scratched a visit to South Carolina simply because they still fly the flag there near the state building.  On the other hand, if anyone in the NAACP believes that, in light of the problems facing the black community in this country, this whole coffee cup thing was worth the expenditure of more than about eight nanoseconds of thought, you have an organization which desperately needs to reorder its priorities.

And on the brighter side, last week’s bird cage matting had a story about Joshua Albers, who got into an altercation with the local police here on his way home from his wedding reception.  His defense attorney did an excellent job marshalling the medical evidence to show that the actions of Alber, who was a diabetic, were actually due to his plummeting blood sugar levels, and the prosecution dropped 11 felony counts down to 3 misdemeanor charges.  I thought the attorney had done a really good job until I read this story from — where else? — Los Angeles:

A diabetic attorney who claimed his judgment was impaired by a hypoglycemic attack was acquitted of smuggling heroin and methamphetamine to his jailed client.

John Kolfschoten, 62, had been charged with one count of conspiracy to commit a crime, one count of bringing drugs into a jail facility and two counts of transportation of a controlled substance.

During the weeklong trial, Kolfschoten testified he thought he was delivering family photographs to the jailed murder defendant. His dangerously low blood-sugar level at the time let the idea of inspecting the package slip his mind, the lawyer testified.

I guess we’ve moved from the “Twinkie Defense” to the “I Need a Twinkie” defense.

Got two weeks of stuff to plow through, so let’s get to it…  Last week’s dog-bites-man story out of the Ohio Supreme Court was the decision nullifying Gov. Strickland’s veto of the bill passed in a twilight session of the legislature last year essentially gutting a large portion of Ohio’s consumer protections.  The Court also upheld Toledo’s pit bull ordinance against constitutional attack, in Vick v. Toledo.  And yes, I did make that name up; the case is actually Toledo v. Tellings. 

In the courts of appeals, a judge in a legal malpractice lawsuit arising out of a divorce case had issued an order compelling the production of the plaintiff’s successor attorney’s file; the 1st District reversed it on the grounds that the judge should have conducted a hearing first, and the opinion contains an excellent discussion of attorney-client privilege and work product in that context.  And while you’re standing in line for the elevators at the Justice Center here in Cleveland, you might want to check out these 8th District decisions on when a court can dismiss a case or grant a default judgment for failure of the other side to appear at a pretrial. 

The 8th District rejects a disproportionality argument on a 29-year sentence for aggravated burglary, attempted murder, kidnapping, and escape.  The 5th District holds that defendant’s arrest for a post-release control violation didn’t automatically terminate PRC, and police could still conduct a warrantless search of his house, because granting consent to such a search was a condition of PRC.  The 11th District vacates a plea because the trial court didn’t make an inquiry of defendant’s reasons for requesting new counsel on the day of trial.  The 10th District reverses a community-control sentence on a second-degree felony, holding that the trial court failed to make the findings necessary to overcome the presumption for a prison sentence.  The 12th District upholds an arson conviction where a student tossed a “bottle rocket” into a trashcan, saying that the explosion, which only melted part of the liner of the can and produced some smoke, was still sufficient to warrant conviction under the statute.

And in the Somebody Didn’t Get the Memo Department:  the trial court in State v. Grimes imposed a ten-year consecutive sentence on two robbery counts, stating that “a minimum sentence would demean the seriousness of the offenses” and “would not adequately protect the public,” and that ”consecutive sentences are necessary to protect the public” and “to adequately punish the defendant.”  All those judicial findings, of course, were eliminated by State v. Foster.  Which had been decided six weeks earlier…