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February 2008 Archives

Stare decisis

Should the Ohio Supreme Court overrule its decision setting forth the standards by which the Ohio Supreme Court should determine whether to overrule its decisions?  That was the subtext of a decision by the Court last week in a workers compensation case, that could have major ramifications in criminal law.

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My day off

Didn't feel like doing much blogging today, so instead I surfed the web for legal stories, and this is what I came up with:

The War on Liquor?  I've blogged on numerous occasions about how the War on Drugs has largely involved a War on the Fourth Amendment as well, as demonstrated most recently by the 9th District's decision I discussed on Tuesday, in which the court essentially repealed the requirement that police obtain a warrant in cases in which they "reasonably believe" that a meth lab is located in a house.  Upon further reflection, that's not limited to drugs; there are just as many bogus and pretextual traffic stops upheld in drunk driving cases as in drug cases.  And, at least according to this blog by a former prosecutor, the claims that this is necessitated by the carnage caused by drunk drivers on our nation's highways is pretty much of a crock. 

Mothers Against Drunk Driving routinely points to the 17,000 "alcohol-related fatalities" that supposedly result annually from drunk driving.  Turns out that this is based on stats compiled by the National Highway Traffic Safety Association, which cautions that "the term alcohol related does not indicate that a crash or fatality was caused by the presence of alcohol."  For good reason; essentially, it's counted as an "alcohol-related fatality" if anyone involved in the accident has a BAC of .01 or above.  A drunk stumbles out of a bar and into the path of a car?  Alcohol-related.  Your buddy has a beer at the game, and on the way home he's killed when you're broadsided by someone running a red light?  Alcohol-related.  The blog's author crunches the numbers, and while I might disagree on some of the fine points, it's fairly obvious that the number of true "drunk-driving deaths" is nowhere close to the stat that's being peddled.

A fool for a client.  Ken Lammers over at CrimLaw has a fun post about the perils of opposing a pro se litigant:  you'll wind up arguing about the applicability of Wyoming's rules of criminal procedure because he read something about that on the Internet, and everything takes three times as long as it should.  I did an appeal recently for a guy who wound up representing himself.  He filed 73 pro se motions, including ones arguing that the Ohio Revised Code hadn't been legally enacted, that criminal law was part of US admiralty jurisdiction, and that since the indictment had his name in all caps and he spelled it in initial caps, it couldn't be him.

What happened to federalism?  I know that the Feds have taken over prosecution of various drug and gun crimes, because of the heavier sentences available there, but the legal blogosphere is abuzz over a 6th Circuit decision on Tuesday upholding a conviction under the Hobbs Act, which prohibits "interfering with commerce by robbery."  The crime in that case?  The lone defendant robbed a Little Caesar's pizza shop here in Cleveland of $538.  Howard Bashman over at How Appealing picked it up first.  Although the Hobbs Act requires only a "de minimis" connection with interstate commerce, the defense argued that two Supreme Court decisions have changed that.  Back in 1990, the Court had struck down the Gun-Free School Zones Act, finding that possession of a gun in a local school zone is "in no sense an economic activity that might, through repetition elsewhere, substantially affect any sort of interstate commerce."  Ten years later, the Court struck down the Violence Against Women Act, holding that "the suppression of violent crime and vindication of its victims" was a matter traditionally reserved to the states. 

The 6th Circuit wasn't buying, and neither has any other circuit; as the concurring opinion noted, "the effect of our Court's rulings is that every local robbery of a business in the United States is a federal crime."  (This was a concurrence?)  A Stitch in Haste notes helpfully that, according to the Department of Justice manual, "The robbery offense in [the Hobbs Act] is to be utilized only in instances involving organized crime, gang activity, or wide-ranging schemes."

Yeah, well, so much for that.

Continue reading "My day off" »

Talk dirty to me

A couple weeks back, Dick Feagler, the Cleveland Plain Dealer's resident scold, penned his latest installment on why America is going to hell in a handbasket.  For those unfamiliar with his ouevre, Feagler's columns typically cast a covetous eye back to those days of yore when men were men and women weren't, and then focus despairingly on what he perceives to be the latest data point on our glide path to total decadence.  On this occasion, according to the headline, it was that "nothing is sacred -- or taboo -- on TV."  That's as far as I got, or needed to.  I doubt if I could make it through an entire Feagler piece at gunpoint any more.  Besides, if you're into that sort of thing, there are people who do it better, like Andy Rooney, although at this point even he can barely open his mouth without lapsing into self-parody.  I guess nostalgia isn't what it used to be.

At any rate, if Feagler believes things are bad now, he probably doesn't even want to think about what might happen on Friday, when the US Supreme Court is due to consider whether to accept review of the 2nd Circuit's decision in FCC v. Fox Television, which struck down the FCC's "fleeting expletives" policy.

Continue reading "Talk dirty to me" »

We have a winner...

A mere two days after the Oscars, we can safely hand out the Award for the Worst Fourth Amendment Decision of the Year.  The envelope, please... Ladies and gentlemen, let's give it up for the 9th District's decision in State v. White

The protagonists of our story are Steven Barrett and Cynthia White, whom the police have suspected for some time of running a meth lab out of their house.  Through various plot devices, mainly a snitch, our story is advanced to the point where Barrett is stopped for speeding, and with the aid of a drug-sniffing dog -- definitely not man's best friend -- several items are discovered which are ordinarily used in making methamphetamine.  As Barrett was being led to the cruiser in handcuffs, he volunteered without any prompting that he thought there might be a meth lab at White's house.

The police scurried over there to, as they put it, "do a 'knock and talk' in order to 'further probable cause' for a search warrant."  This tactic is coming into vogue:  essentially, the police knock on the door, hoping that the owner will do something stupid, like consent to a search or engage in an act which might give the police probable cause to search the premises.  White didn't respond to the officers' knock, but they saw her go into the basement, then run back upstairs, at which point they heard glass breaking.  They stormed the house, arrested White upstairs, and then went into the basement to check for people "who may have been hiding."  They finally got a warrant at this point, and conducted a full search of the house, which produced no drugs, but sufficient other items to charge White and Barrett with illegal manufacture of drugs.

The trial judge tossed it all out, finding that Barrett's un-Mirandized statement wasn't admissible, and that in any event the police should have gotten a warrant.  The 9th District reversed.

Now, understand, I'm not that upset with the result.  I think it's wrong, but far more troubling than the destination is the journey.

In fact, I can pretty much agree that the court got it right on Barrett's statement.  The police officers were the only ones who testified at the suppression hearing, and the trial court didn't find the officers were being untruthful when they testified that the statement was volunteered.  Kinda funky that somebody's just going to blurt out, "Hey, we're running a meth lab out of the house I'm living at," but stranger things have happened.  And I can even see how a court might uphold the search of the house.  I tend to agree with the trial court, that the police can't claim an "emergency" of their own making, and that the appropriate course would have been to get a warrant.  But it's not the most ridiculous thing in the world for the appellate court to have found that White's actions created an emergency situation which justified entry into the premises.  I've seen worse.

But that's not how the court handled it.  First, the court seized on RC 2933.33, a statute passed in 2006 which provides that, because meth labs pose a danger of blowing up, if police have probable cause to believe there's one in a house, those dangers constitute sufficient "exigent circumstances" to justify a warrantless search. 

Now, this is not a well-known provision of the law.  According to my BFF Lexis, it's been cited exactly twice by any Ohio court.  Both were by the 9th District.  One was White.  What really will have anyone's head spinning on its axis is how the court handles the statute, and comes to the conclusion that a warrantless search doesn't even require probable cause to believe there's a meth lab, just something "approaching" that.  The court begins by saying that the dangers are so great that this really doesn't fall within the "exigent circumstances" exception to the warrant requirement, but within the "emergency aid" exception.  The latter, at least according to cases in the 9th District, demands only "some reasonable basis, approaching probable cause." 

But what about the statute, which does specify probable cause?  The court dispenses with that in language that looks like something the Red Queen might have said in Through the Looking Glass:

While [the statute provides] that "probable cause to believe" that a methamphetamine laboratory exists on premises constitutes "exigent circumstances," it does not provide that "reasonable grounds to believe" that a methamphetamine laboratory exists does not constitute "exigent circumstances."

I was temporarily heartened by the fact that two judges merely concurred in the judgment, apparently unwilling to follow the opinion's author down this particular rabbit hole.  But the concurrences make no sense, either.  The first says the police could have obtained a warrant, then drops that issue without further ado.  It then looks at exigent circumstances (not "emergency aid"), and uses the wrong standard in determining they exist ("reasonable suspicion" instead of "probable cause").  The second concurrence says that it doesn't matter whether it's exigent circumstances or emergency aid, because probable cause is all that's required, and the parties concede that existed.  Which, of course, the parties didn't...

I'm sorry, but this is just a flat-out dreadful decision.

Continue reading "We have a winner..." »

Case Update

An interesting decision from the US Supreme Court this past week on retroactivity in criminal cases.  In Danforth v. Minnesota, the Court held that states are free to determine whether to grant retroactivity to US Supreme Court decisions, regardless of how the Court itself treats the issue.  For example, if the Court subsequently holds that Crawford v. Washington isn't retroactive (the circuits are currently split on the issue), the Ohio courts could still hold that it is.  That could have implications in some states more willing to depart from the High Court's dictates, but I don't think Ohio's one of them.

Down in Columbus, the gang was also busy.  I talked about the decision in Hyle v. Porter, striking down the retroactive application of Ohio's sex offender laws, last Thursday.  In Groch v. GM, the Court upheld Ohio's workmen's compensation subrogation law and the 10-year statute of repose for a products liability claim against a manufacturer.  And in State v. Schlee, the Court held that a trial court can look to the Civil Rules for guidance when no rule of criminal procedure is applicable to a motion made by a party in a criminal case.

On to the courts of appeals...

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Stuff that cheeses me off

I couldn't get into the blog all day yesterday -- but why I am telling you this, because you couldn't, either -- and so I come home last night to find an email from the hosting service telling me that they were "having issues" with their "upstream DNS Servers" and that my account "has probably gotten caught up in the upstream service DNS migration that took place yesterday which is not under our control." 

The remedy for this, I was told, was to "update your Domain Name Servers (DNS) settings in your domain registration account."  After that, I was advised to "leave a ticket in our Client Support Center" and that they would "make sure that the domain propagation takes place immediately."

This made as much sense to me as it does to you.   I won't bore you further with the details, which involved several calls to Customer "Support," and a lengthy if ultimately useless conversation with someone who, through a thick Indian accent, identified himself as "Steve."  Still, I managed to do what I was supposed to, then sat back to await the propagation of my domain, which, somewhat unsettlingly, I found vaguely reminiscent of the "master of my domain" Seinfeld episode.  It was then that I learned that, for the blog hosting company, "immediately" meant "when we get around to it, probably within ten hours or so." 

Well, at least they didn't reach the levels of suckitude that AT&T has achieved, as I've lovingly chronicled here, here, and here.  Then again, that's setting the bar pretty high; my dealings with the phone company have led me to conclude that they hire only those too incompetent or morally bereft to find employment as used car salesmen.

Needless to say, if I can't get into my blog, I can't write anything for it, so I don't have a post for you today, other than this.  (And it won't take a lot of time figuring out whether this should go in the "Rants" category, will it?)  You can read my post from yesterday, which you didn't see anyway, on the Ohio Supreme Court's decision on Wednesday on sex offender residency laws.  That's right below this one. 

Actually, there were several significant decisions from that court last week, and even one from their counterparts in DC.  I'll talk about that on Monday, and then other stuff during the week, including the possibility of a US Supreme Court decision on using dirty words.

On that last point, I certainly explored that territory fully last night.

See you next week.

Continue reading "Stuff that cheeses me off" »

Still more on sex offender residency restrictions

I've written numerous times about the goofiness of sex offender residency restrictions (like I did here), in which legislatures and city councils enact ever-more restrictive laws on where sex offenders can live, despite a dearth of evidence that the laws do any good, and some evidence they're actually harmful.  Back in October, I wrote about the oral arguments the Ohio Supreme Court had in Hyle v. Porter.  The case presented the issue of whether the 2003 law prohibiting sex offenders from living within 1000 feet of a school, pre-school, or child care center could be applied retroactively.  (The law was originally designated as RC 2950.031, and later recodified as 2950.034.)  The 1st District had upheld the law, but the 2nd District had come to a contrary conclusion.

Yesterday the Court handed down its decision and held that the statutes couldn't be applied to an offender who'd bought a home and committed his offense before the statute went into effect in 2003.  That came as a bit of a surprise to me, for reasons that should be obvious to anyone familiar with an elected judiciary and how certain issues can be framed.  (Fortunately, there are restrictions on what judicial candidates can say; you won't be seeing any "Evelyn Lundberg Stratton:  Voted to Let Sex Offenders Live in Your Neighborhood!" ads.)  Still, after reading the decision, it's not as sweeping nor as definitive a conclusion to the issue as it might have been.

The Court cuts to the chase quickly.  Most arguments have focused on the constitutional issue of the legitimacy of kicking people out of their homes for something they did before the law was passed.  This has largely followed an ex post facto analysis, although the Georgia Supreme Court came up with an interesting argument I detailed here, holding that retroactive application of the law violated the "takings" clause -- that the government can't take your property without due compensation.  But, the Court explains, before they can get to the issue of constitutionality, they have to consider the issue of statutory construction:  under RC 1.48, a statute is presumed to apply only prospectively unless "expressly made retrospective."

The state had made a couple of arguments here.  First, the statute used the past tense to describe sex offenders:  "No person who has been convicted of, is convicted of, has pleaded guilty to, or pleads guilty to..." various categories of sex offenses fall within the statute.  Thus, the state argued, when it was passed in 2003, the legislature obviously contemplated that the statute would apply to people who'd been convicted prior to that date.  Second, the statute provided that "no person * * * shall establish a residence or occupy residential premises within" the specified ranges.  Again, the dichotomy between establishing a residence and occupying residential premises, according to the state, indicated an intent to make the law retrospective:  a sex offender was prohibited from establishing a residence within the proscribed bounds, but was also prohibited from continuing to occupy a residence within that area once the law took effect.

Frankly, I've seen worse arguments.  (Hell, I've made worse arguments.  Like, in the past 24 hours.)  Still, the Court could legitimately hang its hat on the "express" requirement.  The legislature didn't expressly make the restriction retroactive, so the Court could shoot it down on that basis.  By doing so, it managed to avoid discussing all that icky constitutional stuff.

Of course, that leaves open the possibility that the legislature will remedy the problem by repassing the law, this time with an express statement that it's intended to be retroactive.  Whether it will do that or not is another matter.  Given the mounting evidence that the restrictions do no good and might even be counterproductive, plus the willingness of organizations not normally deemed pro-defendant to make those arguments, it may be an effort to legislate retroactivity might come to nothing.

Or not.  After all, there's no prohibition against someone angling for a state senate slot from running "My Opponent:  Voted to Let Sex Offenders Live in Your Neighborhood!" ads.  Given the state of politics in this country, betting against that happening isn't something I'd care to do.

Continue reading "Still more on sex offender residency restrictions" »

Uncounseled misdemeanor convictions, Vol. 38; Speedy trial, Vol. 49

Back in 2004, the legislature passed a new drunk-driving statute with a 20-year "lookback" provision:  if a defendant has five or more OVI convictions in the past 20 years, the next one becomes a fourth-degree felony (punishable, oddly enough, by up to five years in prison).  The difficulty of proving more-than-decade-old prior convictions was demonstrated by last week's 8th District decision in State v. Macalla.

In Macalla, just to be on the safe side, the state specified no fewer than seven previous convictions.  Good thing they did.  The defendant didn't stipulate to any of the prior convictions, which put the burden on the state to proved the details of those priors.  The defendant had two in 1986, and one each in 1987, 1988, 1989, 1995, and 1999.

Maybe.  The court held that the state failed to prove identity in one of the 1986 convictions, and tossed it.  A bigger problem for the state is that an uncounseled misdemeanor conviction can't serve as the basis for a specification.  The defendant probably could have won the case right there, because three of the prior convictions didn't contain satisfactory proof either that Macalla had an attorney of that he validly waived one. 

There was one problem:  as the Macalla opinion notes, there's a 1989 Supreme Court case, State v. Brandon, which holds that the state doesn't have the burden of proving that the prior conviction was uncounseled unless and until the defendant presents a prima facie case that it wasn'tThe 8th District's opinion notes that Macalla never testified or submitted an affidavit prior to trial claiming that he hadn't had counsel and so, according to them, he waived the issue.

I'm not so sure I buy that.  You could make a legitimate argument that the docket clerk's admission on cross-examination that there was no evidence that the prior convictions were counseled constituted "some" evidence on that.  Still, the safer course was for the defendant to simply introduce an affidavit on that point.  Word to the wise.

The court's treatment of the speedy trial issue was, to me, more problematic.  The state had filed a discovery request on May 2, 2006, and the defendant had answered it on June 5, 2006.  Last year in State v. Palmer, the Supreme Court had adopted the rule that the speedy trial time is tolled for the period that a defendant unreasonably fails to respond to discovery; in that case, the defendant had failed to respond for sixty days, the Court held a thirty-day response would've been timely, and thus charged defendant with everything after that.  It would certainly seem that, under Palmer, the defendant's response here was timely, and none of that period should have tolled the speedy trial time.

But Macalla relies on another 8th District decision, State v. Mitchell, to conclude that all of that time was chargeable to the defendant; that constitutes a tolling event under 2945.72(H), "a continuance granted other than on an accused's own motion."  As I mentioned back here when Mitchell first came down, I think this is bad law:  given that the speedy trial statute is to be strictly construed against the state, I don't see how you conclude that the time is tolled for a "continuance" when in fact no continuance was granted.

Speedy trial law involves enough fictions and logical fallacies, as I've addressed ad nauseam.  (Try this and this for a sampler.)  It doesn't need any more.

Continue reading "Uncounseled misdemeanor convictions, Vol. 38; Speedy trial, Vol. 49" »

With a little help from my friends... Court costs & Intervention in Lieu

Every now and then, an attorney will give me a tip about a case that he thinks would be good for the blog.  The other day, for example, one of the habitués over at the Justice Center told me about State v. Stanovich, a decision out of the 3rd District last year on treatment in lieu of conviction under RC 2951.041.  Under that statute, you can petition the court for drug treatment; if the court goes along with it, and you complete the treatment term, the charges are dismissed.

In Stanovich, the problem was that in addition to a charge of drug possession, the defendant had also been indicted for two counts of misdemeanor assault.  While drug possession is one of the crimes that are eligible for treatment in lieu, assault isn't; the judge denied the petition for treatment on the grounds that all charges under the indictment had to qualify.  The 3rd District reversed, holding that eligibility had to be determined for each offense, and if any of them qualified for treatment in lieu, the court had to determine eligibility for that offense. 

This does pose some options in certain circumstances.  Treatment in lieu isn't available for trafficking offenses, for example, but it's quite common in many counties for the prosecution to tack on "preparation for distribution and sale" trafficking counts with just about any possession case.  The state will then offer you a "deal," agreeing to dismiss the trafficking in return for a plea on the possession.  Under Stanovich, you can file the motion for treatment on the possession count, and let the state decide if it wants to try the trafficking case anyway.

It may give you an advantage, and it may not.  There's some law to the contrary, and keep in mind that whether you're eligible for treatment is one question, whether the judge is going to grant it is another.  It, like so many things in life any more, is within his sole discretion.

And one of the guys over at the PD's office let me in on a decision about payment of court costs by prisoners.  As you may (or may not) know, it's not unusual for a defendant to go off to the joint dragging a court cost bill of several thousand dollars.  There's a provision of the Ohio Administrative Code which permits the prisons to withdraw money for costs from the inmate's account.  In an effort to extract every remaining ounce of flesh, the prisons have been taking not only the money the inmate gets from cranking out license plates, but also any money his family sends him.

An inmate down in Belmont decided that was a bit much, and filed a petition for writ of mandamus.  Lo and behold, the 7th District granted it.  You can find a copy of their decision here.  If you've got a client who's in prison and is complaining of this, send him a copy of the decision; there's a grievance procedure he can utilize under OAC 5120-5-03(C), or under RC 2329.66 to complain about this.

Speaking of court costs, remember that the issue is waived if you don't raise it at sentencing, under last year's Supreme Court decision in State v. ClevengerIf you've got an issue on this on appeal, though, there's an 8th District decision last year in State v. Blade, which held that it's ineffective assistance of counsel for trial counsel to fail to file an affidavit of indigency at sentencing if there's a reasonable probability that the court would've granted a waiver of costs.

By the way, if you've got an interesting case or something you think deserves to be checked out, drop me a line.  The email address above isn't just for fan mail.

Good thing.

Continue reading "With a little help from my friends... Court costs & Intervention in Lieu" »

Case Update

Nothing of significance in the US Supreme Court this week.  Down in Columbus, in addition to State v. Sarkozy, which I discussed on Friday, the Ohio Supreme Court decided Pruszynski v. Reeves, a decision significantly clarifying the law on prejudgment interest.  Although a number of courts have decided that a hearing is only required if the trial court is going to grant interest, the Supreme Court says no:  you've got to hold a hearing either way.  The trial court does have some latitude in exactly what type of hearing to conduct, but there's got to be one.  And in State ex rel Stucco Inc. v. Ind. Comm., the Court holds that even if an employee is validly terminated, if he's on temporary total disability at the time, he's entitled to continue collecting it.

On to the courts of appeals...

Continue reading "Case Update" »

Pleas and Post-Release Controls

The law on post-release controls vis-a-vis sentencing has become pretty settled, especially following the Supreme Court's decision last summer in State v. Bezakthe trial judge has to advise the defendant orally of PRC at the time of sentencing, and also include that in the journal entry.  If the judge doesn't do both, the imposition of PRC isn't valid.  Yesterday, in State v. Sarkozy, the Supreme Court went a long way in resolving whether the failure of the trial court to notify the defendant of PRC at the plea hearing invalidates the plea.  The quick and dirty:

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Girls just wanna have fun

You know that old Woody Allen line about how 90% of life is just showing up?  That's particularly true if the place you're supposed to show up is the Probation Department.

Continue reading "Girls just wanna have fun" »

After the Revolution

In January of 2005, the US Supreme Court revolutionized Federal sentencing law with its decision in US v. Booker, which held that the Federal Sentencing Guidelines were no longer mandatory, but merely advisory.  Thirteen months later, in State v. Foster, the Ohio Supreme Court revolutionized Ohio sentencing law by holding that there wasn't any.

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8th District Roundup - Massacre on Lakeside

A summary of the criminal cases handed down by the Cuyahoga County Court of Appeals last week.  (Trust me, OBAR's headnotes will not read the same way:

Continue reading "8th District Roundup - Massacre on Lakeside" »

Case Update

No news out of Washington, except that Dick "Darth" Cheney filed his own brief in the gun rights case pending in the Supreme Court, differing with the administration's position.  Well, that's not quite accurate, even though the boys over at ScotusBlog phrase it that way.  Turns out that a majority of the House and Senate have filed their own brief (which Cheney, as an officer of the Senate, has signed off on) advocating an affirmance of the appellate court's determination that DC's gun ban is unconstitutional; the administration's position is that the case should be remanded so that the court can apply a different standard of review.  Someday I'll get around to explaining all this, although I did a post a month ago which sets forth some of the questions the decision might raise.

Down in Columbus, the Seven Robed Ones issued a couple of opinions.  The first was something about residual trust assets which you couldn't get me to read at gunpoint.  Of more significance was the decision in Al Minor & Assoc. v. Martin, involving a pension analyst who'd started up his own business, and raided his former company's clients.  Even though he hadn't actually taken the customer lists, the Court held that his use of the information he'd memorized violated Ohio's Trade Secrets Act.

The 2nd District was late in handing down their decisions a couple of weeks back, so they'll be included in this week's update.  Let's get to that:

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"Jamie" gets paper

A month ago, I blogged about the the two days I spent in trial defending "Jamie," a 46-year-old transvestite accused of possessing a crackpipe, the nadir of what most observers had already concluded was an otherwise undistinguished legal career.  (If you can't wait for my autobiography to come out, you can read about it here.)  The outcome of the case depended upon the jury believing Jamie's denial that the crack pipe found at her feet belonged to her.  Apparently, in weighing the credibility of a drag queen against that of two police officers, the jury felt that the scales were decidedly tipped in favor of the police by virtue of Jamie's twenty-six prior criminal convictions.  Who knew?

Continue reading ""Jamie" gets paper" »

This and that...

McCain's Judges.  One of the critical factors in anticipating future Supreme Court trends anymore is the demographics of the Court.  When the next president is inaugurated, four of them will be over 70; two members of the liberal wing, John Paul Stevens and Ruth Bader Ginsberg, who will turn 89 and 76, respectively, within a few months after that.  The next president will have a substantial impact on the direction of the Court.

It's not surprising, then, that with John McCain's emergence as the front-runner for the Republican nomination has come attention to what kind of justices he might appoint.  In an effort to assuage the base of the Republican party, which has serious misgivings about his positions on illegal immigration, ANWR drilling, the Bush tax cuts, and other instances of his deviations from conservative orthodoxy (click here for Ann Coulter declaring that she'd campaign for Hillary Clinton if McCain is the GOP nominee), McCain has declared that he will appoint justices "like Roberts and Alito."

As this post over at the Volokh Conspiracy points out, that poses a problem for McCain, because strict constructionist judges like Roberts and Alito are quite likely to find that one of the crown jewels in McCain's political career, the McCain-Feingold Act restricting campaign contributions and spending, is an unconstititutional limitation on speech.  It's a good read, especially for those interested in political and politico-legal issues. 

Bill Mason's next opponent?  On Tuesday I mentioned the case of Ryan Frederick, who's been charged with first-degree murder in Virginia for shooting a police officer during a drug raid on Frederick's home; Frederick had fired through the door as the police were breaking it down, and claimed that he didn't know it was a drug raid.  Courtesy of Radley Balko's site, we learn that the state has appointed a special prosecutor to handle the case:  Paul Ebert, the Commonwealth DA for Prince Williams County.  His constituents were so taken with him that the last time he ran for office (unopposed), they started a write-in campaign for a ham sandwich

And you thought the Ohio legislature was goofy.  Speaking of sandwiches, A Stitch in Haste offers his take on a proposed law in Mississippi which provides that

Any food establishment to which this section applies shall not be allowed to serve food to any person who is obese, based on criteria prescribed by the State Department of Health after consultation with the Mississippi Council on Obesity Prevention...

Guess I'm not going to be buying that McDonald's franchise in Biloxi after all.  Meanwhile, I can see this coming out of San Francisco, but Mississippi?

Continue reading "This and that..." »

Magic Bus

A few months back, Clevelanders were shocked to learn that the county's Regional Transit Authority had won the award for being the best public transportation system in North America.  This was no mean feat, considering that the city's previous awards had been limited to Place Where You're Most Likely to Be Shot for No Reason, or Top Hellhole on the Great Lakes.  After reading the 8th District's decision last week in Coleman v. RTA, whoever finished in second place in the transportation system voting might want to demand a recount.

Continue reading "Magic Bus" »

News from the (drug) war front

I'm not big on the idea of drug legalization.  I don't buy into claims like this one, that we could get $31 billion in additional revenue simply by legalizing marijuana and taxing it.  I don't buy into the idea that decriminalizing drugs will make them safer, or that it will get rid of the criminal element which deals them.  For those who think that legalization will result in regular commercial entities dealing with production and supply, two words:  products liability.  And the blunt fact is that a lot of people don't do drugs simply because they're illegal.  If anyone really believes that more people aren't going to do crack and PCP and heroin if it's legalized, they're dreaming.

But lordy, sometimes this "war on drugs" stuff becomes so breathtakingly stupid that it makes my eyes bleed.  Like, courtesy of Drug War Rant, comes this story about a Texas 7th-grader who found himself on the wrong side of the front lines of that war:

Mr.  Ortiz said the family's ordeal began Oct.  19, when his son picked up a bottle of hand sanitizer from the desk of his fifth-period reading teacher at Killian Middle School in Lewisville.  He rubbed the gel on his hands and smelled it.

Mr.  Ortiz said he believed the matter was over until Tuesday when he was served with a petition charging his son with delinquency for inhaling the hand sanitizer to "induce a condition of intoxication, hallucination and elation."

You'll be happy to know that prosecutors dropped the charges after deciding "that the common cleaning gel is not an abusive inhalant under the Texas Health and Safety Code." 

If only it were all funny.  A little over a year ago, I blogged about a drug raid in Atlanta that resulted in the death of a 92-year-old woman.  She'd thought the SWAT team members who broke down her doors were burglars, and shot at them; they returned fire, killing her.  Six months later, two of the officers involved pled guilty to manslaughter and perjury; it turns out that they'd lied to get the search warrant, then planted drugs in the house after they'd killed Johnston.

This isn't the only instance of a drug raid gone wrong; the Cato Institute has a nice map of what it terms "botched paramilitary raids," going back over twenty years.  In fact, just a couple weeks ago Chesapeake, Virginia police did a drug raid on the home of Ryan Frederick on the basis of an informant's tip that he was growing marijuana.  As the police were breaking down the door, Frederick, who'd been burglarized a week earlier, fired a gun, killing a police officer on the other side of the door.  He's now been charged with first degree murder and simple possession of marijuana.  Simple possession of marijuana?  Yep.  Frederick, who has no prior criminal record, had three joints in the house.

The people over at the Drug Policy Alliance think they know the reason for all this.


They're probably right.

Continue reading "News from the (drug) war front" »

Case Update

The big news about the US Supreme Court came out of Oregon this past week.  I'd previously blogged about the Phillip Morris case, in which an Oregon jury had nailed the company with $80 million in punitive damages in a smoker's suit, and about how the Supreme Court had reversed the verdict.  Last week, the Oregon Supreme Court reinstated it, on the independent state ground that the jury instruction proposed by PM was erroneous.  Howard Bashman at How Appealing has the story and an analysis, the moral of which is don't try too hard to slant the jury instructions in your favor. 

Down in Columbus, the news that the Ohio Supreme Court has been writing opinions more quickly (or, in the parlance of the grammatically-challenged Plain Dealer headline writer, "quicker") is somewhat diluted by the fact that the court's gone a couple of weeks without issuing any.  The ones this week aren't likely to be regarded as seminal by future generations:  in one, the court upheld red-light cameras as being within the home rule powers of Akron (and, by implication, Cleveland), although it specifically abstained on the procedural due process questions involved in that issue, which will now be decided by a Federal court.  The other case involved the limitations on a lender's liability for a defective consumer product, and any regular of this blog has even less interest in reading about it than I do in writing about it.

So let's get to the courts of appeals.

Continue reading "Case Update" »

Illegal arrests

The cops see your client standing on a street corner drinking a bottle of beer.   They arrest him for having an open container, and a search reveals several rocks of crack in his pocket.  You file a motion to suppress, pointing out at the hearing that open container is a minor misdemeanor, which, except in rare circumstances which aren't present here, isn't an arrestable offense under Ohio law.  Since the arrest is no good, the search isn't either.  The judge agrees, bangs her gavel, tosses the evidence, and that's the end of that case.

That might change, depending on the outcome of a case argued in the Supreme Court a few weeks back, Virginia v. MooreBack in 2003, Virginia police arrested David Lee Moore for driving with a suspended license, and in the search incident to that arrest found a not inconsiderable quantity of cocaine on him.  He was convicted, but on appeal the Virginia Supreme Court noted that Virginia law makes driving with a suspended license a misdemeanor for which an officer can only issue a citation.   It held that since his arrest was illegal, the evidence turned up as a result of the search incident to that arrest was illegal, too.  "Fluit of the poisonous tlee," as the Court said back in Wong Sun

Seems like a no-brainer to me, but here's where it takes an interesting turn:  the State of Virginia (and 18 other states) have argued to the Supreme Court that the exclusionary rule only bars the use of evidence seized where the arrest is in violation of Federal constitutional law.  In other words, if the police have probable cause to make an arrest -- that is, probable cause to believe that a crime has been committed -- the ensuing search is permissible even if the arrest itself was illegal under state law.

This is setting the bar pretty low, because in prior decisions, specifically Atwater v. Lago Vista, the Court has held that any crime, no matter how trivial, is sufficient for an arrest.  (In Atwater, it was the defendant's failure to have her children in seatbelts.)  The state's argument is that a contrary rule allows a state to define the limits of Federal constitutional law:  a search conducted in one state might violate the Fourth Amendment, and the same search in another not, simply because of the differences in the state laws on what constitutes a legal arrest.

Also, keep in mind that the exclusionary rule is not part of the Fourth Amendment; it's simply a "prophylactic rule," like Miranda, that the Court has devised to effectuate the protections of the Fourth.  Given that the Court's exhibited a quarter-century trend of restricting the use or effect of the rule, it's not inconceivable that it might decide that the rule's purposes aren't served by excluding evidence where there was probable cause to arrest, but a state law technicality rendered that arrest illegal.

The effect that this might have on Ohio criminal cases is further muddied by a couple of Ohio Supreme Court decisions.  Back in 2000, the court was confronted with a case in which the defendant had been arrested for jaywalking, the ensuing search resulting in the discovery of cocaine.  The state argued that although the arrest was illegal because the statute (RC 2935.26) prohibited it, the statutory illegality wasn't a constitutional violation, and didn't justify suppression of the evidence.  In State v. Jones, the court rejected that argument, holding that a minor misdemeanor arrest was a violation of the Fourth Amendment and of the Ohio Constitution.   

Fast forward to 2003, and the case of State v. Brown:  another jaywalking arrest which produced a drug possession charge, but in the interim Atwater has come down, and so the state argues that Atwater overrules Jones.  The court rejects that argument, too, holding that "the Ohio Constitution provides greater protection than the Fourth Amendment to the United States Constitution against warrantless arrests for minor misdemeanors."  In short, even if the arrest would be permissible under the Federal constitution, it's impermissible under the state constitution, and the court will apply the exclusionary rule to anything seized pursuant to such an arrest.

So Ohio law won't be impacted by the upcoming decision in Virginia v. Moore, right?  Maybe and maybe not.  The problem is that Ohio's trend toward giving greater protection under the state constitution than required under the Federal constitution -- a trend which included the ruling in State v. Farris a few years back that Ohio's self-incrimination clause provided greater protection than the Fifth Amendment -- took a bit of a detour last year in State v. Buzzard; while the case didn't involve the precise question of what protections were afforded by the state and Federal constitutions, a footnote in the decision carries some ominous portents:

The parties and courts have analyzed this case under the express rubric of Fourth Amendment jurisprudence. Because the texts of Section 14, Article I of the Ohio Constitution and the Fourth Amendment to the United States Constitution are virtually identical, we interpret the two provisions as affording the same protection.

Was that limited only to the facts in Buzzard?  Does that negate Brown?  How will that impact Ohio's handling of Virginia v. Moore?  Stay tuned.

Meanwhile, speaking of prophylactics, my all-time favorite sports line was uttered by CBS broadcaster Brent Musberger in a late-season USC football game a few years ago:  "And the road to the Rose Bowl is paved with Trojans!"

Musta been some game.

Have a good weekend, and see you on Monday.

Continue reading "Illegal arrests" »

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