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New trials; throwing away the key

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.

There's not much question about that:  the appellate panel held that a new trial couldn't be granted as long as the jury's verdict was supported by some competent, credible evidence.  That's the standard, of course, for determining whether a verdict is supported by sufficient evidence; if it isn't, the appropriate remedy is a JNOV, not a new trial.  The Supreme Court correctly points out that the appropriate standard is whether competent, credible evidence supports the trial court's finding as to the grounds for a new trial -- in this case, that the proceedings were tainted by counsel's misconduct -- not whether it supports the jury's verdict.

Wonder what Feiger will have to say on his radio show about that one.

If I had a radio show, what I'd be talking about is the latest efforts by the legislature to see just how many new ways they can come up with to cram more people into Ohio's prisons.  First was the news that the legislature had decided to redress the substantial disparity in the penalties for powder and crack cocaine.  Ohio's law provides a difference of anywhere from 2-1 to 20-1; five grams of crack will get you the same penalty as ten of powder, and 500 grams of powder will get you the same punishment as 25 of crack.

This isn't nearly as bad as the 100-1 disparity the Federal sentencing guidelines provide, and, as I mentioned a couple weeks back, that disparity has born the brunt of so much criticism, mainly over its racial impact -- crack users are much more likely to be black, and powder users white -- that it's being changed.  Ohio is approaching the problem a tad differently, however.  While the US Sentencing Commission has proposed reducing the potential sentences for crack offenders by a year or two, the Ohio bill simply makes powder cocaine subject to the same penalties as crack.

Some state officials tried to throw cold water on the idea, pointing out that increasing the penalties will result in having to spend additional money on prisons.  No one in the legislature has any desire to appear soft on crime, though, so the bill sailed through the Senate by a 32-0 vote, and goes on to the House, where it will likely receive a similar reception.  One lawmaker suggested that the change will actually reduce the number of prisoners, since judges will presumably balk at sending white people to prison.  The contention that increasing the penalties will result in fewer people having to go to prison is certainly a novel one, and since there are an infinite number of planets in the universe, there is always the possibility, however remote, that this argument would make sense on one of them. 

But the topper is the bill recently introduced in the legislature to adopt some sort of "three-strikes" proposal for repeat offenders in Ohio.  Actually, it's a "two-strikes" law:  there would be an indictment specification that the defendant had been previously convicted of a felony, which if found by a jury or judge would essentially allow the judge to impose a prison sentence of twice the normal time (up to 20 years for a first-degree felony, for example), and would contain a presumption that the judge should impose the normal maximum sentence in any event.  That's any felony, folks.  At any time.

It's interesting to see how that would work in harmony with the increased penalties for powder cocaine.  Let's say, for example, that your client had a drug possession case 15 years ago, and sells five grams of powder to an undercover cop.  Right now, that's a 4th degree felony, and the most he can get is 18 months.  Under the new drug law, it's a 3rd degree felony with mandatory time, and under the new sentencing law, the defendant could get ten years.

Sometime next week, I'll dig up some studies that have been done on three strikes laws and their effects.  In the meantime, not to put too fine a point on all this, but this is just nuts.

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