January 2008 Archives
Yesterday, I talked about Crawford v. Washington, the US Supreme Court decision back in 2004 which held that if a statement is "testimonial," it can't be admitted, even if it falls within one of exceptions to the hearsay rule. I also mentioned one of the exceptions to Crawford itself: even if a statement is testimonial, it can be admitted if the person who made it takes the stand. (In that case, of course, it would still have to qualify as an exception to the hearsay rule.)
The Supreme Court granted certiorari a week or so back in Giles v. California to consider another exception. That exception is aptly summarized by this line from the opinion of the California Supreme Court which it will be reviewing:
As explained below, we conclude that defendant forfeited his right to confront his ex-girlfriend when he killed her.
The facts in Giles are fairly straightforward: the defendant was on trial for murdering his girlfriend, but claimed self-defense. That was rendered problematic by the fact that the girl had been shot six times, at least one of which occurred while she was lying on the ground. His claim to being afraid of her became even more difficult to maintain when the trial judge permitted a couple police officers to testify that they'd responded to a domestic violence call from Giles' girlfriend just two weeks before the killing, in which she'd told them that Giles had just punched her, choked her, and held a knife to her throat and threatened to kill her.
The testimony came in under a weird California hearsay exception. (Something about a statement regarding the suffering of personal injury, if "otherwise trustworthy.") Back in Davis v. Washington, a post-Crawford case from 2006, Justice Scalia had written that a defendant might forfeit his right to confront his accusers if he had been responsible for the accuser not showing up at trial. Giles argued that this required the state to prove that the motive for killing his girlfriend was to keep her from testifying, but the California court didn't buy it: they held that as long as the defendant's actions prevented the witness from testifying, his motives for those actions were irrelevant.
Giles is an extreme factual situation, but it's somewhat surprising that the forfeiture issue hasn't come up in any Ohio cases so far; it's not uncommon in domestic violence situations. And it raises some intriguing questions on that score. Say, for example, the victim makes a detailed statement to the police about the abuse, but refuses to testify when the case comes to trial. It could be that the victim is afraid to testify because the perpetrator threatened her, or it could be that the victim simply doesn't want the defendant to go to jail. In the first situation, forfeiture would obviously apply, and the statement would be allowed. In the second it wouldn't. But how do you tell which is which? What's the state's burden there?
And let's throw another log on the fire: what if the victim is afraid to testify, but that's due to just a general fear of the defendant, rather than anything he's done or said? Logically, it seems that it would be the defendant's actions, not the witness's fears, which would determine that question; all the talk about forfeiture has revolved around some definitive act by the defendant, and the very nature of the term ("forfeit") implies that. Again, who has the burden of proof, and what is that burden?
Those are some questions that are bound to come up in the future. And if you're interested in the subject, you can check out the case on ScotusWiki; you can find linkds to all the opinions and briefs there.
Meanwhile, "throw another log on the fire"? When did I start talking like Andy Rooney?
Just about every criminal defense lawyer knows that Crawford v. Washington, the 2004 Supreme Court decision holding that the defendant's confrontation rights barred admission of a "testimonial" statement, was one of the most unexpected and sweeping changes in criminal law in the past decade or so. As might be expected, courts have grappled with the meaning and effect of Crawford. While the exact definition of "testimonial" is still subject to debate, by early last year, the 8th District had at least gotten the basics right: Judge Gallagher's opinion in City of Cleveland v. Colon (discussed here), contains one of the clearest expositions out there on how Crawford works, specifically the interplay between a testimonial statement and the hearsay rule.
It's been pretty much downhill for the 8th District on Crawford issues since, and that slide continued with last week's decision in In re DD, which involved a juvenile accused of raping a 6-year-old. The trial court had allowed a nurse to testify about the statements the victim made to her, and the defendant argued that the admission of those statements violated Crawford.
The court could have resolved that issue by simply saying that it didn't apply, because in this case, the victim testified. That's one of the exceptions to Crawford: even if an out-of-court statement is testimonial, its admission isn't barred if the person who made it testifies in court. After all, you can hardly claim that your right to confront and cross-examine your accuser has been violated if you get to confront and cross-examine your accuser. So all the court had to say was, hey, the kid testified, end of discussion.
Which it did, but not until after it had discussed Crawford in some detail, and made pretty much of a hash of it. Taking language from Crawford that indicates non-testimonial hearsay doesn't implicate the Confrontation Clause, the court somehow concludes that "Crawford only applies to hearsay statements that are not subject to any hearsay exceptions." (The court came to the same conclusion a month ago in State v. Goza; the same judge authored both opinions.)
In other words, if a statement does fall within a hearsay exception, then Crawford doesn't apply. For example, if a statement qualifies as a declaration against interest, you don't even have to bother with determining whether it's testimonial or not.
Unfortunately, that's wrong: indeed, the fact pattern I just gave you is the one from Crawford. The state had attempted to introduce a statement under the declaration against interest exception to the hearsay rule, and the Court held it couldn't do that, because the statement was testimonial.
While the definition of what constitutes testimonial statement gets a bit tricky, the basic Crawford analysis couldn't be simpler.
- First, you decide if the statement is testimonial; if it is, it doesn't come in, unless the declarant testifies.
- If it isn't testimonial, then you proceed to the hearsay analysis; if it falls within an exception, it's admitted, if it doesn't, it isn't.
It's that simple.
It may be that the court still came to the right conclusion in DD, but it's hard to tell. One of the proposed definitions of a testimonial statement is "a statement about a past act or event which a declarant would reasonably expect to be used later in a criminal prosecution." The court in DD doesn't specifically mention this definition, but obviously has it in mind, and dismissed it with the observation that "it is extremely unlikely that a six-year-old child was thinking about trial or criminal charges when he spoke to the nurse."
That's quite true; as I've mentioned before, one of the problems with the "reasonable expectation" test is that it doesn't work for young children: they have no concept of what a trial is, let alone the likelihood of whether their statements will be used at one. That's why the Ohio Supreme Court last year in State v. Siler (discussed here) held that in interrogations of young children, it was the intent of the person conducting the interrogation, not the expectations of the child, which should control. While Siler involved the police interrogation of the child, the opinion cited numerous cases which held that an interrogation by a social worker or a nurse, as happened in DD, could be held to be testimonial. DD, of course, never mentions Siler, and the facts really aren't developed sufficiently in the opinion to determine whether the questioning by the nurse might have produced a statement that should have been regarded as testimonial.
So there's certainly a possibility that DD came up with the right result. But if the process is skewed, as it was here, that significantly undermines the confidence in the result. That becomes a particular problem a few years down the road if this case goes into Federal court on a habeas petition. (And while a juvenile case isn't likely to, a case like Goza, where the defendant got 31 years for rape and kidnapping, is.) As most criminal defense lawyers also know, the 1996 changes to the habeas law substantially restricted its availability. Instead of allowing Federal changes to second-guess state court determinations of Federal law, a Federal court isn't allowed to grant relief unless the state court's decision was based on a "misapplication of clearly established Federal law."
Well, guess what? You don't get much more of a misapplication of clearly established Federal law than a decision which states that Crawford only applies to statements which don't fall under a hearsay exception. With DD and Goza, we have four judges signing off on two opinions in the past month which establish, for the largest county in Ohio, a precedent on Crawford issues that is plainly wrong.
So if you're practicing in Cuyahoga County, get a copy of Judge Gallagher's decision and take it along with you when you have a trial where you expect Crawford issues to arise. And hope that the judge hasn't read DD or Goza.
Tomorrow, I'll talk about a forthcoming US Supreme Court case on another exception as to what constitutes a testimonial statement.
As I mentioned a couple weeks back, Cleveland Mayor Frank "Sleepy-Time" Jackson has announced a campaign to get guns off the streets of the city, acknowledging that this could result in more shootouts between the police and private citizens. So I was somewhat intrigued the other day when I ran across a 9th Circuit decision reported by the Decision of the Day blog. The case was a civil lawsuit involving a police shooting of an unarmed man, within seconds after he'd been stopped while driving a luxury sedan in a "high-drug activity" neighborhood. The legal issue revolved around the arcane question of whether there was a difference between "reasonable belief" and "probable cause," but what caught my eye was the dissent's summary of the testimony of the plaintiff's expert's testimony:
[The city used] a so-called "slumper" scenario in its training regimen, in which officers encounter a sleeping suspect in a car who, upon being awakened, immediately pulls out a hidden gun and fires at the officer. [In addition,] officers are trained on a computer simulation system in which suspects invariably attempt to kill the officer being trained. [The plaintiff's expert] ultimately concluded that the City's training program "creat[ed] a mindset for Portland officers that every citizen encountered may have a gun, and there is nothing the police officer can do to avoid being killed by a 'bad guy' unless the officer shoots first."
I'd never thought of it like that, but yes, if you do train police officers to believe that a certain situation is always dangerous, they will treat it that way, even if it isn't.
So I decided to stick Decision of the Day on my blogroll, the list of links on the right. In fact, I've revamped the blogroll a bit, adding some new ones. One of them is the Confrontation Blog, which, despite its title, is not a respository of "in-your-face" legal arguments, but instead focuses on the evolving case law since Crawford v. Washington came down. It's a handy resource if you've got that as an issue.
In fact, while checking to see what blogs I might want to add, I came to the conclusion that we're perilously close to a parallel to Andy Warhol's observation that, in the future, everyone will be famous for fifteen minutes; instead, in the future, everyone will have their own blog. There's Indefensible, by a public defender, which has this take on the top 10 legal stories of the past year. There's a blog called Boston Criminal Lawyer run by a firm in that city; Friday's post features a news story about a man recently charged with raping an unconscious woman in a men's bathroom, and then brightly announces that "our law firm would be happy to discuss your rape case with you during a free consultation." And that's for a run-of-the-mill rape. Imagine their excitement at discussing your child molestation case with them.
There's even a blog called Angry Pregnant Lawyer. Be afraid. Be very afraid.
I was also going to add Above the Law, which bills itself as a legal tabloid, because they do have some interesting stories from time to time. But mostly, they feature a lot of stories on what the big firms are paying to their associates, and after reading that the going rate for someone fresh out of law school is $160,000 a year, plus a $35,000 bonus if they meet their target of 2000 billable hours, I felt like opening a vein. Our former docket runner just got hired for a summer associate's position at a big firm here in Cleveland, which means she'll get hired the following year after she graduates. So I guess she's not going to be crawling back to us for her old job anytime soon.
Maybe she'll loan me some money...
Tomorrow I'll throw a tantrum about yet another foray by the 8th District in to the Crawford thicket, in which no one emerges unscathed. See you then.
Nothing happening in Columbus. I'll have a post on some key cases in the US Supreme Court on Thursday. Meanwhile, on to the courts of appeals:
Just a short note today. I spent most of the week working on a petition for certiorari in the Supreme Court, trying desperately to keep my efforts from flagging because of the near-certainty that my chances of success are two, slim and none, and Slim rode out of town a while back.
While I was doing that, I had background music on in the form of the oral argument in the Ohio Supreme Court this past week in State v. Gardner (RealPlayer required), which involved the somewhat esoteric issue of jury verdicts in burglary cases. As you may remember, burglary requires that a defendant make an entry for some purpose; in the aggravated variety, as was the case in Gardner, "to commit a criminal offense." The question is, does the jury have to find what particular offense that was, and does that have to be reflected in its verdict?
The thinking behind this is the unanimity requirement for a jury verdict. Let's say, for example, that a defendant breaks into his girlfriend's house and beats her up. One might argue that the offense is at least an assault, might be a domestic violence if they live together, and might even be a felonious assault if the injuries are severe enough. But if the offense isn't defined in the instructions or the verdict form, then it's entirely possible that six jurors could have concluded it was an assault, three a domestic violence, and three others a felonious assault. If that happens, can it be said that the jury "unanimously" concluded that the defendant was guilty?
The 2nd District didn't think so, and reversed Gardner's conviction. (You can read the opinion here.) From listening to the argument, what the Supreme Court's going to do with it is anybody's guess. Chief Justice Moyer seemed to feel that it was a simple requirement of due process, but several other judges didn't seem to be buying into that. For somewhat understandable reasons; the burglary statute requires that the defendant have used "force, stealth, or deception" to gain entry to the premises, and there's never been a case holding that the jury has to unanimously agree which one of those applies in the particular case. And let's say there were three possible offenses that the defendant might have committed, as I outlined above; does that mean that the judge would have to instruct the jury on the elements of each of those offenses?
Toss on top of that the fact that no one objected to the instructions at trial; the 2nd District reversed on a plain error theory, which the courts, and this one in particular, have been increasingly reluctant to use. My crystal ball doesn't see the 2nd District being affirmed here.
By the way, lest you think I am a complete goofball, no, I don't normally use Supreme Court oral arguments as background music. In fact, as a service to my legions of readers, I'll turn you on to something I've mentioned before: a web site called Wolfgang's Vault. You have to sign up for it -- an email address is all you need -- and in return you get live concerts from the 60's, 70's, and 80's by the Allman Brothers, Eric Clapton, the Who, Jefferson Airplane, you name it, they've probably got it, all streamed right to your computer. This afternoon, as I put the finishing touches on my brief, I'll be listening to the performance Derek and the Dominoes put on at the Fillmore East back in October of 1970. You listen to Clapton and the boys do a 14-minute version of "Got to Get Better in a Little While," and trust me, it will.
Catch you on Monday.
This is going to be one of those days when I just take a look around the Web and see if there's anything interesting in the legal field. Sometimes what I find is depressing, like this commentary from the San Francisco Chronicle, highlighted over at Sentencing Law & Policy:
To many in the United States, the country of Somalia conjures up images of a primitive Third World country. So it may come as a surprise to learn that Somalia and the United States share an unfortunate commonality - they are the only countries in the world that refuse to sign the U.N. Convention on the Rights of the Child because of its ban on sentencing children to die in prison.
According to Amnesty International and Human Rights Watch, there are now about a dozen people outside the United States and Somalia who were sentenced to permanent imprisonment as children: South Africa has four, Tanzania has one, and Israel has seven. In contrast, the United States has 2,270 children serving such a sentence, including 227 in California.
Sometimes, though, you come across some really cool stuff, which can help you with your practice. Like, courtesy of Grits for Breakfast, a link to the University of Texas El Paso (UTEP) Eyewitness Identification Research Laboratory. I'd figured it for just a bunch of barely comprehensible research papers, but it's got things like a basic information on how to construct a lineup, and "a Do-It-Yourself Kit for assessing the fairness of an eyewitness identification lineup." Given the well-documented problems with eyewitness identification, something like this could come in handy in preparing for cross-examination of a witness or the police.
In the same vein, there's another website, run by Gary Wells, a psychology professor from the University of Iowa. The website's design is not exactly user-friendly, but if you look for it, you'll probably find something on eyewitness ID that might help you. Dr. Wells even offers a video where you can try out your own identification skills: you view a two-minute clip where you see somebody attempting to plant a bomb, then you're shown a lineup of the potential subjects and are asked to identify the person you saw. When I did it, I didn't think any of them looked like the guy, but there wasn't an option for that. I selected the first person, was told that I'd identified an innocent person, and advised to go to the web site to do additional reading on the problems of eyewitness identification. I then picked the remaining five suspects in turn, and got the same response each time. Oh, well.
And sometimes when you surf the web, what you come across is just plain weird, like this story:
Lindsay Lohan is about to see dead people. The 21-year-old actress will soon be working at a morgue as part of her punishment for misdemeanor drunken driving, her attorney, Blair Berk, told a judge Thursday.
As I've mentioned before, doing this blog is somewhat of a humbling experience, because I'm constantly reminded of how much I don't know. I got another reminder of that last week, when one of the lawyers here walks into my office and tells me that he's got a case where the prosecution wants to call his client's wife to testify that the defendant gave her a forged check. "Can she testify about that?" he asks.
My first instinct is to tell him she can, because as I recall Ohio's rule prohibits a spouse from testifying only if the spouse doesn't want to. In fact, that's what the prosecutor and a couple of other lawyers hanging around at the last pretrial had told him. "That doesn't sound right, though," he complained to me. "What about the marital privilege?"
If you're thinking, "Isn't that what we were talking about?" the answer is no, it's not. Turns out there are two separate concepts at work here: spousal privilege and spousal competency. Spousal competency is governed by Evidence Rule 601(B); it provides generally that all witnesses are deemed competent, then makes several exceptions, one of them being a spouse testifying against the other unless it involves a crime against the testifying spouse or any of the children, or if the spouse elects to testify.
Well, that takes care of that, right? Wrong. There's also the concept of spousal privilege, which is provided by Revised Code 2945.42. (The statute also provides for a definition of competency, but that's superseded by Rule 601). As you can see, the privilege extends to communications and acts between the spouses: neither spouse can testify about them unless a third party witnesses them. Of course, there's also the exception for crimes committed by one spouse against the other, or the children of either.
The case that does the best job of explaining all this is the Ohio Supreme Court's decision in State v. Adamson. That case represented the flip side of my friend's situation: the wife could testify about the husband's acts (killing someone) because there were other people present, but the conviction was reversed because the court never explained to her that she could refuse to testify under 601(B).
While the concepts of privilege and competency do overlap to a degree, the overlap is by no means complete. If the parties are no longer married, the ex-spouse is certainly competent to testify, but the privilege still applies: she can't testify to any acts or communications that occurred during the marriage. On the other hand, the privilege only keeps her from testifying to certain things; competency keeps her from testifying at all if she doesn't want to. And the privilege only applies to those acts or communications that occurred during the marriage; the competency rule prevents a spouse from testifying about anything, even if it occurred prior to the marriage.
So, armed with this information, my friend went off to do battle with the Forces of Darkness, and wound up getting a nolle. The interesting part of this story is that he didn't find out that the witness was his client's wife until his client casually mentioned it a day or two before the trial. So from now on I guess I'll go over the state's witness with my client, name by name, to make sure he's not married to any of them.
The joys of fatherhood are somewhat tempered when you first find out about it when the kid's headed off to her senior prom and the mother is asking you to shell out seventeen years of back child support. Laches is one of those defenses that you may remember from law school and have never seen since, but it could come in handy in these situations, as demonstrated by the divergent results from a couple of 9th District decisions in the past few weeks.
First up was Barker v. Jarrell, where the mother became pregnant in 1987. The father offered to marry her, but she declined, and the two (soon to become three) had no further contact until the mother filed a paternity suit in 2005, seeking back child support.
The father's defense of laches ran into problems. First was the Supreme Court decision back in 1988 in Wright v. Oliver, holding that laches was available in that situation, but only if the father could show "material prejudice"; more problematically, lack of witnesses and the unfairness of suddenly incurring a multi-year retroactive obligation didn't make the cut in showing that prejudice. Moreover, while a number of courts had held that the father's inability to form a relationship with his child might constitute such prejudice, the 9th District had previously rejected that argument.
Not this time, though; the trial court had accepted the defense of laches, and the 9th District affirmed that by a 2-1 vote. The appellate court noted that the father had wanted a relationship with the child, offering to provide financial support when his marriage offer was rejected. The mother declined that, too, insisting he have no contact with the child because her own parents had threatened to cut her off if she did. In fact, the mother had married someone else, and raised the child to believe that the husband was the father, waiting until she'd released custody of the child to the maternal grandmother and the child was almost emancipated before filing for child support. This was too much for the court, which quoted a 4th District opinion in a case with similar facts:
The non-custodial parent is more than a mere money machine. Each parent can contribute to the well-being of a child, regardless of which one has custody. The prejudice to the custodial parent who receives no support is obvious. The prejudice to the non-custodial parent who is denied any input to the child's rearing is just as obvious.
The flip side of Barker was presented in Post v. Caycedo, where the parties' liaison in Puerta Vallarta in 1992 resulted in the birth of a baby girl. When CSEA filed a motion against Caycedo in 2001, seeking back child support, he asserted laches, too. Somewhat surprisingly, given that two of the judges in Post were the ones who formed the majority in Barker, the court never even discusses the argument about whether the father had been denied the opportunity to have a relationship with his daughter.
That could be, though, because the father was pretty much of a jerk: he insisted that the two had had separate rooms, and that the only sexual congress consisted of the woman's performing oral sex upon him. The court found this hard to swallow (pun fully intended), particularly since the genetic testing showed a one-in-53 million chance that he wasn't the father. Noting that, "to paraphrase the principle contained in Occam's Razor, all things being equal, the simplest explanation is usually the correct one," the court observed
In order to find Caycedo credible, this Court would have to find the following facts to be true. Post met Caycedo and decided almost instantly to have a child with him against his wishes. The two flew to Mexico together and Post obtained the receipt for Caycedo's room to later support a claim that the two had sexual intercourse. Post then performed oral sex on Caycedo and somehow impregnated herself with Caycedo's sperm.
Snaps to the opinion's author for citing to Occam's Razor.
One other thing to note about these cases: RC 3111.13(F)(3)(a) provides that a father can't be ordered to pay back child support if at the time of the request the child is more than three, and the father did not know and had no reason to know of the pregnancy. Keep in mind, though, that in Smith v. Smith the Supreme Court held that the statute couldn't constitutionally be applied where the child was born before the statute took effect in 2000.
Ain't love grand?
Probably the biggest news out of the US Supreme Court this past week was its refusal to hear an appeal by Cleveland's former Boy Mayor, Dennis Kucinich. Kucinich was asking the court to order the Texas Democratic party to put him on the primary ballot, despite his refusal to sign a declaration that he would support the party's eventual nominee who, barring a catastrophe of Biblical proportions, will not be him. The Court's ruling unfortunately deprives the eight people in Texas who were thinking of voting for him the opportunity of doing so.
Last September, when we were vacationing in Maui, I stopped off in a bar to watch a ballgame while my wife was shopping. On one TV was the announcement (threat?) that Dennis Kucinich would shortly be giving a press conference. (For some inexplicable reason, Hawaii seems to be a favorite campaign stop for Dennis' quadrennial Quixotian quests for the presidency.) "Would you believe that goofball is my Congressman?" I said to the bartender. She looked at me in surprise, and chirped, "I love the guy!" I chalked it up to the thought that if I lived in Maui year round, I'd probably love everybody, too.
Down in Columbus, the Robed Seven churned out a number of decisions, though not any of epochal significance: when a plaintiff moves for summary judgment, he doesn't have the burden of negating the defendant's affirmative defenses; a statute imposing a mandatory prison sentence for an offense (rape, in this case) does not require imposition of consecutive sentences for mulitiple violations of that offense; and equitable estoppel could not be used to rescue a 40-year-old claim against a diocese based upon sexual abuse by a priest, where while the diocese may have tried to prevent the plaintiff's resulting pregnancy from becoming public, but there was no evidence it tried to prevent a lawsuit.
In the courts of appeals:
Civil. 1st District holds that court records don't have to be sealed just because the parties want them to be; statutory requirements for sealing records must be met... Where mother agrees to journal entry acknowledging paternity and setting child support, her later motion seeking back child support is barred by res judicata, because it could have been addressed in the original entry, says 10th District... 8th District reverses summary judgment in slip and fall, says attendant circumstances raise jury question as to whether hazard (floor mat) was open and obvious... 4th District reverses lower court's dismissal on basis of motion alleging res judicata, because defendant failed to raise defense in his responsive pleading...
Criminal. If you and one of your law firm partners are representing co-defendants, you need to read this 10th District decision on potential conflicts of interest; both attorneys wound up off the case... 8th District reverses denial of post-sentence motion to vacate plea, says defendant's assertion that attorney incorrectly told her she'd get 3 for 1 credit against her prison sentence for time she'd spent in jail, and that she'd be eligible for judicial release after one year on eight-year sentence, required a hearing... 8th also holds that robbery under 2911.02(A)(2) (attempting to cause serious physical harm) is not lesser included offense of aggravated robbery under 2911.01(A)(1) (using firearm)... 4th District points out that state law does not permit order of restitution to third party (in this case, insurance company and Victims of Crime fund)... 4th District holds that extension of statute of limitations for sexual battery from 6 to 20 years wasn't ex post facto violation when applied to defendant against whom 6-year statute hadn't run at time extension was enacted...
That's one tough broad. From the facts in the 8th District's decision last week in State v. Evans, picking up after the defendant tried to grab the victim's purse:
The victim found herself facing a man, whom she later identified as Evans. Evans demanded that she give him her purse. When she resisted, he stated, "I've got a gun." The victim indicated that she saw no weapon, but Evans moved his free hand toward his belt area. Rather than frightening the victim, the gesture served to embolden her. She told him, "Well, you know what? You're going to have to use it," and began to kick and fight.
Evans ran away.
One of the easiest predictions for the new year is that we will see the first substantive Supreme Court case ever on the 2nd Amendment. As I've mentioned before, the Court has accepted review in District of Columbia v. Heller, the decision by the DC Court of Appeals which tossed out the District's gun control statute. The central question in the case is whether the 2nd Amendment provides for a collective or an individual right to bear arms.
What's surprising about this argument is the fact that there's a question about that at all. For most of the past two centuries, it has been almost universally accepted that the right is a collective one, its sole purpose being to ensure a ready militia. To be sure, gun rights advocates have argued the individual position, but for every quote from the Founding Fathers supposedly supporting that argument, opponents could trot out ten cases from various courts around the country holding that the right was merely collective, and did not in any way restrict the passage of regulations on individual gun ownership, possession, and use.
Over the last ten years, that has changed dramatically. Harvard Law Professor Laurence Tribe, indisputably liberal and perhaps the most recognized authority on the Constitution in the country, switched over and advocated the individual rights theory in his latest textbook on constitutional law. It is now widely anticipated that the Court will indeed adopt the individual rights position. (If you're interested enough in the subject, you might want to take a look at the case's entry at ScotusWiki; you'll find an analysis of the arguments, links to all the pleadings, and links to newspaper articles and blogs discussing the case in endless detail.)
That's not to suggest the decision in Heller will settle the issue, by any stretch. There's an excellent post over at Balkinization on the subject; the post and the comments below it pose observations about the issues Heller would raise if it comes down as expected. Who gets to possess guns? What "arms" are covered? What regulations can be imposed on carrying them? What test is used in determining that: rational basis? Compelling interest? Something in between?
And getting away from the abstract legal questions, this may impact some of the cases we handle. I recently had a client charged with having a weapon under disability, based on a twenty-year-old drug conviction. If there's an individual constitutional right to own weapons, does the age of the conviction and the nature of the crime preclude imposing a disability on that basis? Can you argue that there's no "compelling interest" in imposing a disability in those circumstances?
I've also mentioned before that under Federal law, penalty enhancements for having a gun require that the prosecution prove that the gun was "used in" the commission of the crime; under Ohio law, on the other hand, the gun only has to be "possessed" at the time the crime was committed. You'll find Ohio cases where people have been convicted of firearm specifications because drugs were found in the defendant's bedroom and a gun was found in his car parked out on the street. Again, if the state is required to show a compelling interest in infringing upon an individual constitutional right to possess guns, does that mean they're required to show some connection between having the gun and committing the crime?
Most of us probably have views on gun control and regulation. (Full disclosure: I used to be a strong advocate of gun control laws, but came to the conclusion a number of years back that gun control for liberals is what capital punishment is for conservatives: an issue central to their views on crime, but which really has no effect on it.) Whatever those views, the fact is that Heller will herald the beginning of the development of a significant, and up to now neglected, area of constitutional law.
There's not much question that Marquis Hairston was a bad guy. Over a four-week period during the fall of 2005, he and some pals conducted three home invasion in the Germantown section of Columbus, terrorizing the inhabitants at gunpoint. His spree started just seven days after he'd been released from prison for another crime. Midway through his trial, he changed his plea to guilty on eleven first-degree and three third-degree felony counts, plus three three-year gun specs.
If there was any lingering doubt over the mess that is Ohio's sentencing laws in the wake of Foster, it was dispelled during the oral argument in the Ohio Supreme Court last week on Marston's resulting 134-year sentence. That's right, 134 years. The defense had argued that this violated the 8th Amendment's cruel and unusual punishment clause. That might be so, except there's case law that says you only look at the sentence for a particular crime, not the composite sentence. Plus, as Justice O'Connor pointed out, Hairston had committed two violent felonies prior to this one. In California, he would have gotten a life sentence based on their three strikes law. And the US Supreme Court had upheld that law against a constitutional challenge.
The sentencing reforms enacted back in 1996 basically struck a bargain: in return for more power flowing to the judiciary on sentencing (mainly by abolition of parole), that power would be subject to "guided" discretion: judges were to consider various factors, and there were limitations placed on their power to impose more-than-minimum, maximum, or consecutive sentences. The first part of that bargain is intact, but Foster eliminated the second part of it. I started doing this blog about three months after Foster came down. In the time since, I can think of two cases I've seen where a sentence was reversed. And in one of them, it was reversed because the court gave probation instead of prison time. Judges now essentially have unfettered discretion to impose sentences, and the Supreme Court will likely put an exclamation point on that when it comes down with its decision in Hairston's case a few months from now.
Marques Hairston has been given the functional equivalent of life imprisonment without parole. Shock probation and parole, both of which would have shortened his sentence before the 1996 sentencing "reforms," are no longer available. (Judicial release, the successor to shock probation, isn't available to a person serving a sentence of more than ten years.) In fact, back then, Hairston couldn't have gotten more than 15 years in prison; that was the maximum cumulative sentence which could have been imposed for the crimes he committed.
Not that I'm shedding any tears about that. The fact that the Marques Hairston show is not going to be coming to a neighborhood near me is just fine. This was hardly an isolated incident of bad judgment. In addition to the two previous convictions, Hairston's post-release crime spree spread beyond Franklin County; in oral argument it came out that he's also doing 59 years for another batch of offenses out of Scioto County. Even given his somewhat tender age of 24, whatever chance there was of redeeming Hairston, that ship sailed a while ago.
Still, from my vantage point of skimming through the cases each week, it appears that harsher sentencing is not an isolated occurrence. I frequently see double-digit sentences handed down in cases which, here in Cuyahoga County, would result in a prison term half or even less of that.
The loser in all that isn't just the concept of consistency of sentencing, which was at the heart of the 1996 reforms: the idea that similar sentences would be handed down for similar crimes. The taxpayers of Ohio are going to be paying the tab for Marques Hairston's incarceration long beyond the age when he's a threat to anyone. Given the proposed passage of a three strikes law here in Ohio, and the contemplated increase in powder cocaine penalties, it's likely that a lot more people are going to be sent to prison in the coming years, and are going to be staying there for longer periods. Ohio's spending for prisons increased five times faster over the past twenty years than its spending for education. It doesn't look like that's going to change anytime soon.
Catching up with some stuff...
Let's hope Judge Kline doesn't read this. Last week I did a post on the Ohio Supreme Court's decision in State v. Crager, where it upheld the admission of DNA testimony by an analyst, other than the one who'd performed the actual tests, against a Crawford challenge. Central to the Court's holding was the belief that the integrity of BCI was such that who actually performed the test didn't matter, a view embodied by Judge Kline in his concurrence that "the prosecutor asked BCI for the DNA analysis through glasses of justice, not glasses of conviction." Then there's this story from the Jacksonville Times-Union:
Only weeks before Chad Heins' murder trial in 1996, a Jacksonville prosecutor sent a memo asking a state crime lab supervisor to downplay findings that stray hairs found on the victim's body came from an unknown person.
"I need to structure your testimony carefully so as to convince the jury that the unknown hairs are insignificant," Assistant State Attorney Stephen Bledsoe wrote in a letter recently obtained by the Times-Union.
Heins spent 11 years in prison before being exonerated by DNA evidence. (Hat tip to CrimProf Blog.)
Truth in advertising. The legal community was abuzz last year by this ad for a three-woman divorce firm in Chicago:
Well, it turns out that the model for the picture on the left was none other than Senior Partner Corri D. Fetman, who also appeared in a photo spread in Playboy. In fact, Ms. Fetman now writes a column for the magazine, entitled "Lawyer of Love," in which she expresses a view of marriage so jaundiced it makes the average divorce lawyer sound like Mr. Rogers. Also, at the risk of being unchivalrous, a comparison of Ms. Fetman's picture for the Playboy column with the one on the firm's website confirms both the magic the magazine's photographers can work and the wisdom of the decision to focus the ad's picture on Ms. Fetman's more obvious assets.
Then again, that just might be my bitterness coming to the fore. I'm seriously considering suing the firm for using my picture as the male model in the ad without my permission.
Almost a year ago, I highlighted the case of Burdge v. Supervalu Holdings. Burdge had shopped at one of the defendant's stores, paid by credit card, and received a receipt which -- the horror, the horror -- contained the card's expiration date, in violation of Ohio's "credit card truncation" statute. As I'd mentioned, Burdge was so outraged by this that he shopped at the same store a dozen more times, then sued them under the statute.
Turns out that Burdge and his lawyer had pulled the same scheme at numerous other stores. The problem was that the statute required proof of actual damages, and Burdge had none. The trial court in Supervalu threw out the lawsuit, just as courts had done in the previous cases. This time, though, the 1st District also hit up Burdge and the lawyer for about $3,000 in sanctions, finding that the lawsuit and appeal were frivolous.
In fact, as I also mentioned at the time, the apparent intent of the lawsuits was to use the statute to get retailers to pony up some money in order to avoid litigation. In another case, a movie theatre had agreed to settle a case with the pair for $2,500; when the settlement check arrived a day late, the lawyer claimed the settlement was off, and demanded $5,000. The defendant told the lawyer to get lost, the plaintiff sued, and the court threw it out, which was affirmed by the appellate court.
Well, it appears that the lawyer has gotten himself a new client, as I'd suggested, but, as the 5th District's decision last week in Stromp v. Fifth Third Bank indicates, is sticking to the same routine. This time, it was a lawsuit against a tavern. The parties agreed to settle for $5,500, with payment due by May 30, 2006. The plaintiffs didn't sign the agreement until May 31, but when payment wasn't made until a week later, the lawyer said the settlement was off, and continued the litigation.
The plaintiffs even continued it after the court ruled that the settlement was valid and should be enforced. The trial court didn't cotton to that, and ordered an award of over $10,000 in sanctions against the plaintiffs and their lawyer for pursuing the litigation after the settlement was ordered into effect. The court of appeals affirmed.
Back in the Supervalu case, the concurring opinion noted
What is particularly disturbing about the contrived nature of this frivolous action, as discussed above, is that. . . an attorney, licensed to practice in this state and sworn as an Officer of the Court, would facilitate this type of exploitive litigation to the detriment of the defendant, the court system, and the practice of law in general.
Well, make mine a double. Every time one of us files an idiot claim like this based upon some hypertechnical regulatory statute, or sues a school district because little Susie didn't make the cheerleading squad, or comes up with some absurd theory of relief like "reckless and negligent use of a bathtub," it makes the rest of us look like a bunch of cheap whores. And, because it happens so damned often anymore, the public doesn't need much convincing on that score.
If you went to law school so that you could file bullshit cases like these, you went for the wrong reason. And if the courts decide to start hitting you up in the pocketbook for it, well, sooner or later maybe you'll learn your lesson from it.
Speaking of a updates, I'll be doing a one-hour seminar on Thursday night for the Cuyahoga Criminal Defense Lawyers Association, on major case developments in criminal law over the past year. It's at 6:00 PM at John Q's, so drop by if you'd like.
On to the cases. The big news out of Washington is that in addition to hearing oral argument in the lethal injection and voter fraud cases, the Court granted certiorari in a California case involving forfeiture under Crawford v. Washington. What's that? Crawford, as you know, bars testimonial statements, but the Court has indicated that a defendant may have forfeited his confrontation rights if he was responsible for the declarant not being available. (For example, by killing the witness to keep her from testifying.) There have been no Ohio cases on this yet, but it's cropped up elsewhere, and it's certain to produce a further refinement of Crawford. If you're following Parker v. DC, the big gun rights case pending before the Court, you can find all the amicus briefs here, including one from "Professors of linguistics."
Down in Columbus, the Supreme Court affirmed a death penalty; the noteworthy aspect of the decision was the discussion of merger of aggravated robbery and kidnapping charges; I'll have more on this subject later this week. In fact, three judges dissented on that point, saying that the offenses should have merged. Given that this had no effect whatsoever on the death sentence, I can't imagine a more irrelevant, how-many-angels-can-fit-on-the-head-of-a-pin discussion.
On to the courts of appeals...
Last year, 134 people were murdered in the City of Cleveland. That was the highest number in thirteen years. So yesterday, Mayor Frank "Rip Van Winkle" Jackson woke up long enough to announce a new policy to combat that. As this article notes, the centerpiece to the policy is "to unleash aggressive police officers for daily gun sweeps and restart the gang unit as ways to combat crime." (The gang unit was disbanded in 2004 after extensive police layoffs.)
The wisdom of the "aggressive" policy on guns is subject to some debate, as a more extensive article details. First, even Jackson acknowledges that the policy will lead to more police-citizen confrontations, and quite possibly shootouts. More significantly, the policy may run into some problems under search and seizure law. The article describes how the policy will work:
Undercover police and federal agents will do nearly daily stings, observing people in high-crime areas.
If they suspect the people are carrying guns, the undercover officers will call in patrol officers who will approach the suspects and ask if they are carrying weapons.
The decision as to which particular suspect to stop is "based on training and the characteristics of people carrying guns," and it's questionable whether a generalized standard will support a specific stop.
That doesn't mean those cases are going to get thrown out on 4th Amendment grounds. First, "stop" is a misnomer in this context; we're really talking about a "consensual encounter." As the courts have noted, if you're walking on a street, a policeman is perfectly free to come up and ask you a question, just as you are perfectly free to walk away without answering it: that kind of encounter doesn't implicate the 4th Amendment. Of course, that's nice in theory, but in practice, the state is counting on the fact that few people, when encountered by a couple of police officers asking if he's armed, will have the temerity to say, "none of your business," and keep on walking. Once the suspect stops and engages the police in conversation, you easily get into issues of consent, and it's not exceedingly difficult to wind up with a good search and arrest under those circumstances.
Of course, that's assuming that an arrest is the intended outcome here. It may not be. One of the problems with the exclusionary rule is that it's based on the idea that the police will be deterred from violating the 4th Amendment if they know that the evidence they seize can't be used in the prosecution. That's well and good, but the rule becomes irrelevant where the police interest in prosecution is secondary, if it exists at all.
There's reason to believe that's the case here. The policy is similar to the one used in New York City under Rudy Giuliani's first term as mayor, and it was strikingly successful in reducing crime. Not because of increased arrests, though; later studies showed that while stop and frisks increased substantially, only one in nine led to even an arrest, let alone a successful prosecution. The point wasn't arrests and prosecution, though: the point was to spread the message that the cops were stopping people and looking for guns, and the result was that people stopped carrying guns. It's not unlikely that the same thing will happen here.
Of course, there's also the racial aspect. Despite protestations by police officials that training in "the characteristics of people carrying guns" has "nothing to do with profiling or the color of people's skins," it's a little difficult to imagine that a particular person's status as a young black male won't enter into the calculus of whether to initiate an encounter.
That may not be a problem either, though. A long time ago I had a case involving a couple of black kids, 18 and 19, who were stopped and rousted by the police youth squad, a precursor to the gang unit. My clients were part of a larger group of about eight or nine kids who happened to be standing around a street corner. There were no drugs or guns involved; my clients wound up being charged with resisting arrest and disorderly conduct. Both of them were good kids; neither had any prior involvement with the police.
There were six blacks on the jury, and I had a field day in trial. The cops testified that their policy was essentially to stop and break up any group of three or more young black males, and I summoned all the righteous fury that my bleeding heart white liberal mind could muster in closing argument, condemning the explicit racism of the policy and the loss of liberty that was its result. I even threw in some references to South Africa's apartheid.
The jury returned a guilty verdict. I went back and talked with them; much to my surprise, it was the blacks on the jury, all of them older than 40, who were the prime movers for conviction. I asked them why, and they mumbled responses which indicated they were troubled by their verdict, too. But you could tell that they were just so tired, tired of looking out their windows and seeing the gangboys selling drugs on their street corner, tired of being afraid to send their kids or grandkids to the store up the street, tired of being woken by gunshots in the night.
Those of us who practice criminal law, and who frequently deal with criminal rights issues, tend to lose sight of the fact that there's an inevitable tension between order and liberty, and a need to balance the two. Where that balance is to be struck is the hard part. There are a lot of tired people, black and white, in Cleveland right now. If this policy reduces the violence, the sacrifice of some measure of 4th Amendment freedoms is going to be regarded as worth the cost. That may be hard for some of us to accept, but we might feel differently if the gangboys were on our street corners.
If you happen to need advice on how to prepare a jury in voir dire for the fact that you're client's a transvestite, I'm the go-to guy there.
I spent the last two days trying a crackpipe case involving a 46-year-old transvestite -- we'll call her Jamie -- with twenty-seven prior convictions, almost all of them for drugs. Check that, twenty-six prior convictions. She had twenty-seven prior cases, but on one of them, about seven years ago, she'd gone to trial and been acquitted. So she was figuring to catch lightning in a bottle again. I told her I'd talk to the judge about putting her on probation if she pled, but she was having none of it. She didn't have a crackpipe, she said, and she wasn't going to plead to anything.
By the way, when I say "transvestite," on those twenty-six priors, she went to prison seven times. On one of them, they sent her to the women's prison.
Like most lawyers, I use voir dire to condition jurors: to inculcate them in certain principles, like reasonable doubt and burden of proof, and to prepare them for certain facts that are going to come out during the trial which are particularly adverse to my client. Needless to say, this one presented some challenges in that regard. I'd suggested to the judge that my task might be easier if we used some background theme music during the voir dire -- my preferences would have been Aerosmith's Dude Looks Like a Lady or Lou Reed's Walk on the Wild Side -- but he nixed that.
It went well, for a while, anyway. My client was going to testify, so I did a bit of reverse psychology on self-incrimination, explaining her 5th Amendment rights to the jury, how she didn't have to testify and how the judge was going to instruct them that they couldn't take that into consideration, and getting the jurors to promise me that they wouldn't hold it against her... and then, "Well, Mrs. Smith, let me tell you right now, I'm going to promise you my client will take the stand. She wants to tell you her side of the story." That got them pretty charged up, but it was downhill after that. When I explained that, as a result of her taking the stand, it would come out that she had eleven felony convictions in the last ten years, and certainly they could promise me that they wouldn't hold that against her, there were several jurors who were giving me the "you're kidding, right?" looks. And when I said, "You're probably wondering why the judge referred to my client as a he and I'm referring to her as a she," several starting looking around for the hidden cameras, certain that Ashton Kutcher was going to pop out and tell them they'd just been punk'd.
The trial itself was a riot. The facts were pretty simple: the vice squad was on a prostitution detail, and according to the police, Jamie waved down one of the decoys, and offered to perform fellatio for ten dollars. When the takedown cars showed up, Jamie reached under her miniskirt and pulled an object out of the crotch of her panties, then got out of the car. The cop waiting outside the car asked her what was in her hand, and Jamie opened it and said, "Nothing." There was the clink of glass hitting concrete, and the cop shined her flashlight on the ground, and lo and behold, there was a crackpipe a foot or so away from Jamie.
Jamie's story corresponded to that, up to the part about the negotations over the sex act. But she steadfastly maintained that she had nothing to do with a crack pipe, having been clean of drugs since 2005. Her denials reached a crescendo when she learned forward in the witness chair, locked her eyes on the jury, and declared, "I haven't had a stem in my mouth in two years." I am not making this up. I looked up at the judge, who was just about falling out of his chair. The other high point of the trial occurred during her cross-examination, when the prosecutor referred to a "hand job." In her best drag queen voice, Jamie patiently corrected him: "It's a head job, not a hand job."
After that, it was instructions and closing, and then back to wait for the verdict, which, the judge opined, shouldn't be more than five minutes in the offing. Given the nature of the case, the conversation among the lawyers, the judge, and the cops quickly degenerated to the level of the locker-room. The judge suggested that Jamie's distinctions between hand jobs and head jobs should prove a useful subject of discussion for the recently-married prosecutor and his wife at dinner that night. The other officers gave the decoy cop a good ribbing; when Jamie had first entered his vehicle, she'd given him a kiss on the cheek, and the other officers swore he didn't wash the spot for two weeks. I chimed in by telling him that maybe his fellow officers wouldn't have given him such a hard time if he hadn't sent flowers to my client when she was in jail.
I'd set the over-under at forty-five minutes for a verdict, but it took almost an hour and half. We trudged back into the courtroom for the inevitable. And the inevitable occurred, as it inevitably does; Jamie didn't even flinch when the judge said "guilty."
The judge referred Jamie for a presentence report, and didn't remand her, but warned her that if she didn't show up for sentencing she'd get the maximum. The judge is a good guy, so I'm not sure what he's going to do. While we were waiting for the verdict, he mentioned that if he put her on paper, she'd just be back with another case in another month or so. Of course, if he ships her, the taxpayers of Ohio get to pay a couple grand a month to defer that next case for the length of her prison stay.
On the elevator ride down to the probation department, Jamie asked me what I thought was going to happen when we returned for the sentencing. As a lawyer, I'm always relieved when the rare occasion occurs that a client asks me a question of which I'm absolutely sure of the answer. As I was here. I looked at Jamie and said, "Nothing that hasn't happened to you before."
Portage County Judge John Plough made news last year by holding Brian Jones, a public defender, in contempt for refusing to go forward with a trial in a misdemeanor assault case. Jones felt he had a pretty good reason for refusing: he'd been appointed to represent the defendant only the day before the trial. Plough was unmoved, and locked him up for five hours, subsequently fining him $100. Jones' lawyer announced that they'd be taking an appeal to the 11th District. It turns out that this is pretty much a common practice for Judge Plough.
Well, here's some good news for Mr. Jones and his lawyer: the 11th District apparently doesn't think too much of Judge Plough's methods, either. A couple of weeks ago, in State v. Diroll, they reversed a conviction in a domestic violence case where Plough had done something similar. Not only did they hold he had abused his discretion in refusing to grant a continuance, but it found the facts didn't support the conviction, and ordered Plough to enter an acquittal. (In case you're wondering, Plough's name is never mentioned in the opinion; I went to the Portage County online docket and tracked down the case, and found that it was indeed Plough's.)
Plough's not too popular with his peers, either; as this article indicates, one judge has filed a complaint against Plough, alleging that he "intimidates defendants; abuses defendants' rights to a speedy trial; issues inappropriate sentences; keeps incomplete or inaccurate records of trials; and" -- perhaps the most damning -- "took personal calls while on the bench during at least one jury trial." The horror... the horror...
While Plough's actions justificably engendered a lot of criticism, it was handled in the customary manner: the state and national criminal defense bars got into the act, issuing statements criticizing Plough, but in fairly temperate terms. Down in Florida, it seems they had a similar situation: one of the local judges by the name of Carol Aleman had adopted a policy of setting trial dates within a week or two of arraignment. These were major felony cases, as opposed to the simple misdemeanor cases Plough was handling. Apparently, Aleman's purpose was to present defense counsel with the Hobbesian choice of going forward with a trial for which he is certain to be unprepared, or requesting a continuance and thereby waiving his client's speedy trial rights.
The defense lawyers down there have their own blog, and the judge's actions were the subject of several posts, in language not normally found in polite legal circles, as this excerpt from one post shows:
As my case was on recall for 2 hours, I watched this seemingly mentally ill judge condescend each previous attorney. I had my argument ready. Prior to being placed on recall, I first approached the podium and noted that her question to me: "trial or continuance" placed my client in a position of having to decide b/t his rt to a speedy trial & his right to explore discovery. Nonetheless, almost 2 hours later, my [case] was finally recalled:
ME: "Judge (not your honor b/c there's nothing honorable about that malcontent) ... there seems to be a mistake in this case."
EVIL, UNFAIR WITCH ("hereinafter "EUW"): "and what is that?"
Not surprisingly, that excerpt bought the author a disciplinary complaint several months later, for the "disrespect toward the tribunal" provision of the code of conduct.
As I'd pointed out several months ago, there's a question of whether those regulations can survive vagueness challenges under the First Amendment; at least one Federal court has found they can't. I'll go with that. I can describe the president of the United States in the most unflattering, degrading terms possible. (And have, as my officemates will tell you.) I can't say the same thing about some judge?
But it's not going to reach the level of the Florida defense lawyers' blog. I mean, come on, guys: "EVIL, UNFAIR WITCH"? "Mentally ill"? Was high school that much fun that you have to relive it through your prose?
Every now and then doing this blog makes me feel dumb. I like to think of myself as fairly knowledgeable about search and seizure law, but last week I'm preparing the case update and I run across State v. Blevins, a case out of the 3rd District on anticipatory search warrants.
Apparently, opinion-writing took second place to some hard partying in the courthouses across the state. The Columbus Gang handed down an affirmance in a death penalty case, and issued one other case announcement, and there's fairly slim pickings in the court of appeals, too. The Nine Robed Ones in DC decided to accept the case involving whether the death penalty can be imposed for child rape, and they'll kick off the arguments on Monday with one on whether lethal injection is cruel and unusual punishment.
So, let's get to it:
The state sends blood samples out to the Bureau of Criminal Investigation -- Ohio's counterpart to CSI -- for DNA analysis. The tests determine that the victim's blood is on the defendant's shirt, and based largely on those results, the defendant is convicted of aggravated murder. One problem: the analyst who conducted the test is on maternity leave at the time of trial, so the prosecutor has another analyst testify, based upon his review of her report.
That wouldn't have been a problem five years ago: the original analyst's report would have qualified under the "business record" exception for hearsay. But in 2004, the US Supreme Court held in Crawford v. Washington that "testimonial" statements could not be admitted at trial without violating the defendant's right to confront witnesses, even if the statement qualified under the hearsay rules. In 2006, in State v. Stahl, the Ohio Supreme Court defined a testimonial statement as "one made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial." The original analyst certainly would have made her report in the belief that it would be available for use at trial; the introduction of that report by someone who hadn't prepared it would thus clearly run afoul of Crawford and Stahl.
Or not, the Supreme Court held last week in State v. Crager. Relying chiefly on its decision in State v. Craig, where it had permitted testimony regarding an autopsy from someone other than the person who performed it, and a California Supreme Court case on the admission of DNA evidence under circumstances similar to that in Crager, it reversed the 3rd District's decision holding that such evidence was testimonial and thus barred by Crawford.
The 3rd District had certified its result based upon a conflict with another opinion out of the 6th District, and that may have been a significant factor in the outcome of Crager. The 6th District decision, State v. Cook, had dealt with the admission of breathalyzer test results: the state had introduced a packet of documents to show that the breathalyzer had been properly tested, and that the officer performing the test was certified to do so. The court held that was permissible under Crawford, as long as the officer who actually conducted the test testified at trial. It would have been difficult to affirm both Crager and Cook, and the Supreme Court wasn't about to require everybody who calibrated a breathalyzer to show up at trial, so it's not going to require the person who actually performed the DNA analysis to show up, either.
The decision is accordingly broad, and quite possibly too much so: the syllabus flatly states that "records of scientific tests are not 'testimonial' under Crawford v. Washington." The opinion itself concedes that other courts have come to the opposite conclusion, and as the dissent points out, the majority's reliance on Craig, at least, is arguably misplaced: the coroner is an agency wholly independent of the prosecutor's office, and the obligation to perform an autopsy is imposed by statute, and thus outside the definition of a statement made "with the expectation that it would be used at trial."
Central to the outcome is the Court's apparent belief that it really doesn't matter whether the defense gets to cross-examine the person who actually did the test or someone who's merely knowledgeable about the process and read the test results. This is apparently premised on the idea that "BCI maintains its independence to objectively test and analyze the samples it receives." This notion reaches its apogee in visiting Judge Kline's concurrence, which attacks the appellate court's conclusion that "the fact that these [DNA] reports are prepared solely for prosecution makes them testimonial." According to Judge Kline,
absent evidence to the contrary, it should be presumed that the primary purpose behind any county prosecutor's request for DNA analysis is to seek justice, not merely to prosecute or convict a defendant. . . the prosecutor asked BCI for the DNA analysis through glasses of justice, not glasses of conviction.
There's no question that the world would be a better place if it were the one imagined by Judge Kline, but it's not; as this article indicates, there's no shortage of crime labs or prosecutors, or both, working to ensure that the question of innocence takes a back seat to the pursuit of convictions:
A 2002 audit of the crime lab in Houston, Texas, found that experts may have given "false and scientifically unsound" testimony in thousands of criminal cases. Subsequent reports showed that crime lab employees often tailored their tests to fit police theories about how a crime was committed. . . A 2005 audit found critical errors in the state of Virginia's crime lab, considered one of the best in the country. The audit found that senior-level experts in the lab were too often persuaded by political pressure to secure convictions.
Perhaps the highest priority of a criminal justice system in a democracy is ensuring that innocent people aren't convicted. Making an a priori assumption that the prosecution has that goal foremost in mind isn't the best way of achieving it.
When the Ohio legislature enacted its latest batch of tort reforms in 2005, it must have had in mind Einstein's definition of insanity: repeatedly performing the same act with the expectation of different results. Thirty years before, and then again in 1987 and 1997, the General Assembly had passed a variety of supposed "reforms," only to see them held unconstitutional by the Ohio Supreme Court. But that was then, this is now: last week, in Arbino v. Johnson & Johnson, the Supreme Court sustained the two biggest items, limits on non-economic and punitive damages, deferring ruling on the third -- collateral source benefits -- because the plaintiff lacked standing to argue it.
I'm not going to get into the merits of tort reform, because that's more a political question than a legal one. Unless you happen to be in the group of plaintiffs' lawyers who, with some regularity, win "pain and suffering" awards of more than $350,000 -- a subset of the legal profession which, alas, does not include me -- your views on the subject are shaped by your politics.
I'm not even going to get into the details of the opinion. Sure, there are some weak points, like the argument that if the legislature can provide for treble damages for violations of the Consumer Sales Practices Act, there's no problem with the legislature limiting damages. The difference between expanding damages for a legislatively-created cause of action, and limiting damages for a common-law cause of action, should be evident. Still, if we were discussing the case in a vacuum, one could make an argument that tort reform is a policy dispute best left to the legislature, and those aggrieved by the result should seek their remedy at the polls, not in the courts.
But we're not discussing this is in a vaccum. Back in 1997, the legislature passed a series of "reforms" containing caps for non-economic and punitive damages virtually identical to those passed in 2005. In State ex rel. OATL v. Sheward, the Court threw all of them out.
Five years ago, in Westfield Ins. v. Galatis, the Court established a test for determining whether a prior decision should be overruled:
(1) the decision was wrongly decided at that time, or changes in circumstances no longer justify continued adherence to the decision, (2) the decision defies practical workability, and (3) abandoning the precedent would not create an undue hardship for those who have relied upon it.
So how does the Arbino Court apply Galatis to justify overruling Sheward? It doesn't. Galatis is never mentioned, for the obvious reason that the decision in Sheward would not meet those criteria. In fact, Sheward isn't overruled; the Court fluffs off the entire debate about stare decisis with the statement that "the statutes before us here are sufficiently different from the previous enactments so as to avoid the blanket application of stare decisis and to warrant a fresh review of their individual merits," without any further mention whatsoever of what those differences might be. Again, for good reason: the statutes upheld last weeek, in their aim, their effect, and even in much of their language, are indistinguishable from the ones struck down in 1999.
Since the Sheward decision, business groups have spent millions of dollars on Supreme Court races. During the 2006 election, for example, candidates for the two Supreme Court seats received over $2 million in campaign contributions, with a quarter of that money coming from the health and insurance industries. Chief Justice Moyer has of late lamented that state of affairs, acknowledging that it creates the appearance of justice being for sale. Moyer wrote the majority opinion in Arbino; almost a decade earlier, he had written the dissent in Sheward. By 2006, three of the four justices who'd been in the majority in Sheward had been replaced; all three voted with the majority in Arbino.
One might suggest that Chief Justice Moyer's concerns about the willingness of contributors to throw money at Supreme Court candidates might be solved if those contributors did not believe that the Court's decisions in a particular area like tort reform could be reversed simply by changing the composition of the Court. The lip service the Court paid to stare decisis last week did nothing to dissuade anyone from that belief.
You'd think that if I'm going to take a week-long break from blogging, the courts of Ohio would have the common decency to take a vacation from handing down opinions, too. Not so much; my buddy Lexis advises me that no fewer than 438 decisions have come down since my last case update. About 160 of them are those brief case announcements from the Supreme Court where it tells various supplicants not to bother it with their silly little problems. That still leaves plenty of appellate court decisions, though.
Before we get to those, the Ohio Supreme Court handed down a couple of significant decisions last week, one upholding the 2005 tort reform statutes in several significant respects, and the other on the application of Crawford v. Washington to scientific evidence. I'll discuss those two in more detail in the next two days. In Washington, the Roberts Gang gets back to work with a justices' conference on Friday to determine which cases they're going to review. Probably the biggest is the case out of Louisiana on the constitutionality of imposing the death penalty on child rapists. There's also one from Ohio on the Foster/ex post facto issue.
So, let's tackle those courts of appeals decisions...
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