December 2007 Archives
Okay, I know I said I wasn't going to post anything until January 2, but the Ohio Supreme Court came down today with two decisions which essentially gave a lump of Christmas coal to the personal injury and criminal defense bars, while handing out shiny new bicycles to the insurance industry and county prosecutors. In Arbino v. Johnson, the Court upheld certain provisions of the tort reform statutes passed by the General Assembly back in 2005, specifically, those capping non-economic damages at a maximum of $350,000, and those capping punitive damages at two times the compensatory damages. And in State v. Crager, the Court reversed a 3rd District decision which had held that a DNA analyst's testimony about a test that had actually been performed by a different analyst was a "testimonial" statement under Crawford v. Washington.
I'll have more on both decisions next week. Remember, our motto here at The Briefcase: We read the cases so you don't have to.
I'm going to be taking a break from blogging for the holidays. I'll be back on January 2.
In keeping with the holiday season, the last thing I'm going to talk about today is law. Well, legal cases, anyway. I figured that a 4th District decision on the intricacies of traffic stops takes a distant third behind the two things foremost on your mind: what you're going to get, and what you're going to give. So, as usual, I'm here to help you out.
A month ago I wrote about a case here in Cuyahoga County where the judge had ordered the prosecution to provide their complete files to the defendant in an aggravated murder case, so that the defendant's experts would have the same information the state's experts did. The prosecutor's office immediately filed a writ of prohibition with the Supreme Court, asking that the order be overturned. At the time, I commented on that strategy:
the institutional memory of the prosecutor's office apparently leaves something to be desired. A Cuyahoga County judge did pretty much the exact same thing back in 1984, and the prosecutor's attempt to stop it through a writ of prohibition was flatly rejected by the Supreme Court, which held that the state had an adequate remedy at law, namely, an appeal under RC 2945.67. . . The Supreme Court came to the exact same conclusion in the exact same fact situation a year later.
The state tries to get around this in its brief by using the exception in prohibition law that the availability of a remedy of appeal isn't a requirement if the court "patently and unambiguously" lacks jurisdiction to enter the order. That's a real stretch, though. . . the appellate courts have traditionally been quite willing to grant a trial judge the right to control discovery, and make whatever orders she deems necessary in that regard, reviewable only for abuse of discretion. Then, of course, there's the problem of the 1984 and 1985 decisions, which are "on point," as we lawyers like to say. I don't see how the state gets around that.
This morning, the Supreme Court granted the motion to dismiss the complaint, holding that the prosecutor had an adequate remedy at law by way of appeal under RC 2945.67, and that the judge's discretion over discovery matters meant that she didn't "patently and unambiguously lack jurisdiction" over the question.
Needless to say, I'm sitting by the phone, breathlessly waiting for the call from County Prosecutor Bill Mason offering me a spot on the payroll vetting his appellate strategies.
Seriously, at the time I wondered about the reasons for going the route of a writ of prohibition. (You can tell I've been working on my alliteration exercises, huh?) There was such a "hail Mary" quality to the whole thing, I thought it might have been based on a fear that direct appeal to the 8th District was even more futile, given that District's trend. I guess we'll find out now.
You're handling a personal injury case, and your client has signed a "protection letter" with the doctor, pretty much a standard practice: the client gets medical treatment without having to pay for it at the time, with the promise that the doctor will be paid out of the proceeds of any settlement or judgment. That happy day comes, and you bring your client in to sign the settlement sheet and okay the distribution of the proceeds. When you get to the part about sending a check to the doctor, your client tells you that he doesn't want you to do that: he'll take care of the doctor out of his own money.
There were more than a few lawyers who'd do that, in the understandable belief that their client is the one who calls the shots, and if the client says he wants all the money (except for fees and expenses), it's the lawyer's obligation to give him just that. That you're no longer working for just your client was one change in the new Rules of Professional Conduct that went into effect this past February, and that point was emphasized by an Opinion of the Board of Commissioners on Grievances and Discipline a couple weeks ago. (You can read the Opinion here.)
A couple of quick notes on recent search and seizure cases.
The 2nd District's decision in State v. Wilson dealt with an unusual set of facts. The police had observed Wilson sell a handgun to a man at a gunshow; shoftly thereafter, they pulled the man over for a traffic violation and found that he wasn't allowed to have a gun by virtue of a prior felony conviction. By that time, Wilson had gotten into an SUV as a passenger and left the gun show. Deciding that they wanted to get Wilson's name as a potential witness, the police stopped the SUV. They ordered Wilson out of the vehicle, and when he opened a door, the cops saw a baggie of cocaine in the proverbial "plain view."
In the last term of the United States Supreme Court, which ran from October of 2006 through June of 2007, the Court handed down seventy-two opinions. Twenty-four of them, exactly one-third, were decided by a 5 to 4 vote. Justice Kennedy was in the majority in every one of those 5-4 decisions. In 54% of them, he sided with the conservatives, on 25%, with the liberals, the remainder being split in other configurations.
Now, that's a swing vote. One might make a case that we are, at least for the moment, a nation ruled by Anthony Kennedy. That case became more compelling a couple weeks back with the oral arguments in the latest bout of Guantamo detainee cases, in which both sides -- and several justices -- seemed to base their entire presentation or questioning on the single goal of luring Justice Kennedy into their camp.
Although only three cases from last week show up on the Ohio Supreme Court website, the Gang of Seven was a bit busier than that, handing down over a dozen decisions. None were of any monumental significance: there were a couple of disciplinary cases, and two on the unauthorized practice of law (one involving an accounting firm which prepared corporate charters, and another on a lawyer who flunked the bar exam but got a job with a law firm by dummying up a bar registration number and certificate).
There were also several cases, like this one, rejecting habeas relief for sentencings that had become final before State v. Foster. Of more practical impact is IBEW v. Vaughn Industries, in which the court held that when you ask for attorney fees in a complaint, you can wait until after judgment is entered on your main claim to file for them.
In Washington, before going on Winter Recess until January 7th, the Supreme Court granted cert in a case involving the question of whether damages for emotional distress are subject to income tax. The DC Circuit had ruled on the case twice, first holding that the money wasn't subject to income tax, then holding it was subject to excise tax. Figure that one out.
On to the courts of appeals...
See, here's the kind of stuff that cheeses me off.
I've got an appeal that I'm doing. Not the best case: my client is charged with aggravated robbery, and the two victims positively ID him and the codefendant. I've got a couple of issues -- the judge probably let some stuff in that he shouldn't have -- but they’re going to be subject to harmless error analysis, so I’ve got to make an argument that the evidence in the case wasn’t as overwhelming as it might seem.
I might be able to do that. Although the two victims made identifications, they didn’t at the cold stand conducted 20 minutes after the crime, and there’s some other stuff, like the fact that none of the stolen items were found on my client or the codefendant, and that neither of them had the gun the victims claimed the robbers had. And the descriptions of the robbers got a lot more specific after the cold stand, so I can make the argument that the ID from the photo display was really based on seeing the defendants at the cold stand, not at the robbery. Not great, but still…So I finally get to the sentencing, and here’s what the defendant’s trial counsel says:
“Your honor, it’s been a pleasure for me to represent [the defendant]. I told him that the evidence against him was compelling on the aggravated robbery case and I think he was likely to be convicted.”
I had another one a little while ago where the defense lawyer said at sentencing that if he’d known the state’s case was that strong, he would have told his client to plead.
It’s one thing if the client wants to ‘fess up to the crime, in an attempt to show remorse so that he’ll get a lesser sentence, but in both cases the defendants insisted they were innocent. While their defense lawyers stood there and essentially said, “Yeah, I would’ve convicted him, too.”
I've also had ones where I'm going through the transcript and jotting down all the ways the trial judge screwed up, only to get to the sentencing and see where defense counsel congratulated and thanked the judge for the wonderfully fair trial his client got.
Moral of the story: if you want to brown-nose the judge, fine, but don't do it on the record, and at your client's expense.
In addition to the big Supreme Court case on out-of-guidelines sentencing, which I discussed a couple days back, the Court on Monday handed down two other decisions in the criminal law area. The less significant was Watson v. US, which involved the somewhat abstruse question of whether someone who trades drugs for a firearm "uses" a firearm within the meaning of 18 USC 924(c)(1)(A), which adds a mandatory minimum five years to the sentence. A few years back, the Court had determined that someone who trades firearms for drugs does fall within the statute's proscription, but in Watson the Court decides that doesn't work the other way around.
It's tempting to think that Watson is of no interest to anyone who's not representing a client charged with trading drugs for firearms, but I found it somewhat thought-provoking. There's a big difference between how having a firearm is penalized under Federal law and how Ohio law treats it. Federal law requires that the gun be used in the crime, which the Court has interpreted to mean "actively employed." In fact, merely possessing a gun kept near the scene of drug trafficking doesn't qualify. It does under Ohio law; I've found cases in which the court upheld a firearm specification where the drugs were found in a house, and the gun was in a car parked outside the house.
Back in July of 2004, Idamay Fortune filed a lawsuit against her nursing home, claiming that one of their aides was negligent in allowing Idamay to fall in the shower. Little did she know that she was embarking upon a legal oddyssey which would culminate last week with the 5th District's somewhat mystifying decision upholding the nursing home's insistence that the dispute had to be resolved through arbitration.
Three hours after I post the Case Update saying that there's nothing new from the US Supreme Court, they come down with a trio of major criminal decisions. They're mostly pertinent to those who handle Federal criminal cases, but there's some overlap into state law. I'll tackle the biggie today, and the other two later this week.
Nothing from the gang in DC or Columbus this past week. In fact, the future pickings are pretty slim, too: the US Supreme Court isn't going to have any more oral arguments this year, and the Ohio Supreme Court's slate for Tuesday and Wednesday features three disciplinary cases, three tax cases, and two PUCO cases. The high-low in the criminal arena is a death penalty case out of Cuyahoga County, and a case on the constitutionality of Columbus' dog-barking ordinance. Anyway, on to the courts of appeals...
Yesterday I had lunch with Cuyahoga County Prosecutor Bill Mason. Well, me and about thirty other members of the Criminal Section of the Cleveland Bar Association. Mr. Mason had dropped by to chat us up about the numerous innovations the courts and the prosecutor's office were making ensure that the machinery of the justice system functioned more smoothly.
The first part of the talk was devoted to identifying all the chefs who were concocting this brew, culminating in the display on the overhead of an organizational chart which seemed only slightly less complicated than the Pentagon's. I suppose I should have been reassured by the fact that no fewer than twenty separate committees are charged with the task of analyzing and reporting on what goes on, and recommending further changes, but the only thing it brought to mind was the old observation that a committee is an alleyway down which ideas are lured to be strangled.
Way back in 1880, the US Supreme Court held that a state denied a black defendant equal protection of the law by putting him on trial before a jury from which blacks had been intentionally excluded. That case presented a fairly simple situation: the law of the state -- West Virginia, in that case -- specifically provided that blacks couldn't serve on juries. In 1965, the Court was confronted with a different situation: while the law permitted blacks to serve on juries, the prosecutor had used his peremptory challenges to remove all of them.
That presented a rather different situation, given that peremptories have historically been allowed for any reason whatsoever. The Court upheld the conviction, saying that the defendant had to show a systematic county-wide pattern of bias in order to make a successful challenge of discrimination.
Twenty years of experience showed that that was impossible, and in 1986 the Court reversed direction in Batson v. Kentucky, holding that discrimination in the use of peremptory challenges was unlawful as well. This past Tuesday, it had oral argument on another case involving that issue, in what many -- the prosecutor especially -- had hailed as the Louisiana version of the OJ Simpson case.
I usually only do one post a day (and if you're just checking in, there's another down below), but the urgency of the situation demands an exception here. If you're still searching for that special gift for a lawyer acquaintance or family member, you can't do better than the -- wait for it -- Sandra Day O'Connor Bobblehead Doll. Time runs out on Saturday. Be the first on your block. Must be 18 to enter. Void where prohibited by law. Your mileage may vary.
And speaking of Christmas, the Bush administration has apparently concluded that it can improve its dismal approval ratings by taking on Santa Claus:
America's top doc told the Herald yesterday that Santa Claus should slim down, in the latest blow struck in a global politically correct crusade against the jolly fat man.
"It is really important that the people who kids look up to as role models are in good shape, eating well and getting exercise. It is absolutely critical," acting U.S. Surgeon General Rear Adm. Steven K. Galson said in an interview after a presentation on obesity at the Boston Children's Museum.
Where's the love?
Shop 'til you drop, and I'll see you tomorrow.
Manuel Rodriguez was charged with raping and kidnapping his 11-year-old stepdaughter. The first time the case was tried, the judge declared a mistrial because he believed that improper evidence had come in. Rodriguez was convicted of both counts in the second trial.
Last week, in State v. Rodriguez, the 8th District determined that the judge never should have declared a mistrial the first time around. That meant that double jeopardy barred his retrial, and his conviction was vacated and he was discharged.
Lots of stuff the past week or so...
1st District rejects contention that sexual predator law violates Blakely, holds that while law requires judicial findings, designation is "remedial" and therefore doesn't implicate 6th Amendment... 2nd District rules that RC 2929.22, which specifies when maximum sentence can be imposed for misdemeanors, violates Blakely, but holds that defendant waived issue by not raising it at sentencing... 6th District holds that even if probation revocation proceedings were instituted before probation period terminated, court lost jurisdiction to impose sentence for violation once period expired, unless it extended period before expiration...
8th District reverses grant of motion to suppress where police began search before warrant arrived; since warrant was valid, evidence could come in under inevitable discovery doctrine... 1st District also holds that court can't order probation department to calculate restitution, must hold hearing on issue... 5th District holds that judge may not impose reduced sentence upon violation of judicial release... 8th District holds that 1-year firearm spec isn't lesser-included offense of 3-year spec, defendant not entitled to instruction on it as a lesser offense...
Speaking of lesser-included offenses, 3rd District holds that counsel's failure to request charge on one is matter of trial strategy, not subject to review for ineffective assistance of counsel claim... 9th District holds that, on no contest plea to felony theft offense, court can't determine stolen property was a lesser amount and reduce charge to misdemeanor...
Call us the minute you get out. From the headnotes of the 1st District's decision last week in State v. Walker:
When a defendant convicted of rape has been ordered under R.C. 2950.031 not to reside within 1000 feet of any school premises, his argument that the restriction violates his constitutional rights is not ripe for appellate review because of the defendant's incarceration for a 24-year term.
The gang in Columbus didn't turn out anything last week, apparently still working through a diet of turkey sandwiches, turkey loaf, turkey pot pie, and the other ingenious ways that the repast of the previous week can be repackaged. The big boys down in DC heard oral argument Wednesday on a case involving the intriguing issue of "whether the Federal Aviation Administration Authorization Act preempts a Maine state law meant to block the delivery of tobacco purchased over the Internet to teenagers." Think I'll wait 'til it comes out on video.
Fortunately, our appellate judges more than made up for the slack. In fact, there's so much good stuff out there that I'm going to run through the civil cases today, and the criminal ones tomorrow.
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