February 2008 Archives
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.
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as demonstrated most recently by the 9th District's decision I discussed on Tuesday, in which the court essentially repealed the requirement that police obtain a warrant in cases in which they "reasonably believe" that a meth lab is located in a house.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.
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.
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.
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...
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.
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.
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't. The 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.
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. Clevenger. If 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.
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...
View more posts in the Archive »