October 2007 Archives
The US Supreme Court's decision in 2004 in Crawford v. Washington probably was the most significant criminal case of the past decade. The Court ruled there that, regardless of the hearsay rules, out-of-court statements could not be admitted if they were "testimonial." Since Crawford was handed down, though, courts have struggled with the definition of exactly what constitutes a testimonial statement. Last week, the Ohio Supreme Court ventured into that thicket again, in State v. Siler, and came to a substantially different conclusion from the first time they'd addressed the subject.
A couple of weeks ago, I discussed Geoffrey Feiger, a Michigan attorney notorious for his courtroom antics, and mentioned that he'd won a $30 million medical malpractice judgment here in Cuyahoga. The trial judge was so upset with Feiger's conduct that he granted a new trial, but the 8th District reversed that and reinstated the verdict. Last week, the Supreme Court reinstated the grant of a new trial, holding that the 8th District had applied the wrong standard of review.
Nothing from the gang in Washington during the past week, but several cases of note from their counterparts in Columbus. The big decision was State v. Siler, dealing with whether a child's statements to the police qualify as "testimonial" under Crawford v. Washington. I'll have a post discussing that in detail tomorrow. The Supreme Court also reaffirmed that failure to submit a medical affidavit with the complaint in a malpractice case can be cured by later amendment of the pleading, and ruled that a court can't modify a shared parenting agreement simply because it finds that the modification is in the best interests of the child -- it must also find that there has been a change in circumstances.
Finally, it reversed the 8th District, which in turn had reversed the grant of a new trial in a medical malpractice case; the Supreme Court found that the appellate court had used the wrong standard of review. I'll touch on that in a little more detail on Wednesday. (Interestingly, that case isn't mentioned on the Court's web site.) On to the courts of appeals....
Some sentencing decisions have come down over the past couple weeks that I never got around to discussing, but I will now, because I need to get this out of the way so I can finish up a brief that I've been agonizing over for the last two weeks...
The first is State v. King, out of the 10th District. Simple situation: defendant appeals his conviction for agg robbery, felonious assault, and kidnapping, with gun specs. The appellate court affirms the robbery and kidnapping, but reverses the felonious assault for insufficient evidence. The trial court resentences the defendant, giving him the exact same sentence as when he'd been convicted of everything. He takes that up on appeal, claiming that the sentence is excessive. The court doesn't even reach that issue, holding that since the defendant didn't appeal the sentence in the remaining convictions in his first appeal, he can't do it now.
This is a weird case, and almost certainly not the correct result.
I got volunteered to do a presentation on ethics at the meeting of the Cuyahoga Criminal Defense Lawyers Association in November, so I've been reading up on the new Ohio Rules of Professional Conduct, which replaced the old Code of Professional Responsibility in February. In doing that, I've been struck by the fact that while the new Rules detail what our various duties are and to whom they are owed, it doesn't do a very good job of prioritizing them.
It seems to me that there's some need for prioritization, given the increased tendency of prosecutors, bailiffs, and judges to believe that the defense lawyer's first duty is to get his client to agree to a deal which will expedite the whole criminal process.
Maybe one of the reasons the Supreme Court didn't hand down any decisions last week was because they were working on proposed changes in the rules. Maybe not. Anyway, here's the quick and dirty on the proposed changes:
Back in 1992, William Garner found a purse outside a hospital. He went to the purse-owner's house, used the keys in the purse to break in, stole numerous items, and then set fire to couch because he thought he might have left fingerprints on it. There were six children in the house; five of them died in the fire. Garner was arrested shortly thereafter, and made a full confession to the police. He was tried, convicted, and sentenced to death.
Six weeks ago, the US 6th Circuit reversed the denial of habeas relief, holding that the state hadn't shown that Garner understood his Miranda rights sufficiently, so that his waiver of them could not be deemed knowing and intelligent.
All quiet on the Western -- er, Columbus front last week, and no decisions out of the US Supreme Court either. The latter did agree to add 17 cases to their docket this term; probably the biggest is one on whether states can require photo ID's for voting. There are several important criminal cases as well, particularly on sentencing issues, such as how felony drunk driving convictions or state drug convictions qualify a defendant for enhanced sentencing under the armed career criminal statutes. On to the courts of appeals...
Interesting postscript to the Ohio Supreme Court's decision in State v. Geeslin, which I discussed on Wednesday. That was the case involving the due process ramifications of destruction of evidence by the police. The seminal case on that subject was the US Supreme Court decision in Arizona v. Youngblood. Youngblood had been convicted of raping a ten-year-old boy back in 1983, and the swabs taken by the hospital were inconclusive. The police had taken other samples, though, but failed to refrigerate them, and they were lost. An expert testified at trial that the lost samples could have exonerated the defendant, and the Arizona Supreme Court reversed, holding that the failure to preserve them was a due process violation.
Has this ever happened to you? You get the state's discovery back, and it indicates your client made no written or oral statements, and then the arresting officer gets on the stand and he tells the jury about how the defendant made all kinds of spontaneous remarks at the time of his arrest, confessing to dope possession, having a gun, robbing a bank the day before, and the Lindbergh kidnapping. Has that ever happened to you?
Besides every trial, I mean.
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