March 2008 Archives
On Friday morning, I got on an airplane in Phoenix, where it was 79 degrees. I got off in Cleveland, where it was 34. 'Nuff said about my state of mind. If this keeps up, next week's Case Update is going to be titled the "Cabin Fever Edition."
Lots of stuff happened while I was away. The US Supreme Court decided the Medellin case, and had arguments in another case, both of which I'll talk about tomorrow. The Ohio Supreme Court also was busy. In State v. Smith, it held that theft was a lesser included offense of robbery, and in doing so muddied the law on lesser offenses even more than it already was, an accomplishment most observers had considered impossible; we'll talk about that one later in the week. In Minster Farmers Co-Op v. Meyer, the Court held that a notation by a merchant on an invoice of an interest rate higher than that allowed by law for a book account is invalid. In plain English, that means if a merchant sticks a little phrase at the bottom of an invoice -- like, "payments after 30 days will incur 18% interest charge" -- it's invalid. Well, actually, it's invalid from here on; the Court made the ruling prospective only.
On to the courts of appeals...
So much for that. Last Friday, I blogged about the 8th District's decision in State v. Casalicchio, in which the court decided that the Supreme Court got it wrong in State v. Bezak when it held that a sentence imposed without properly advising the defendant of post-release controls was void. I've mentioned the problems of declaring that a sentence is void -- since a conviction requires a sentence, a void sentence arguably voids the conviction as well -- and I predicted that the Supreme Court would eventually come to its senses and rule that a failure to properly impose PRC simply made the sentence voidable. The Supreme Court had done something similar in regard to the sentencing statutes it held unconstitutional in State v. Foster; while Foster declared such sentences void, last year in State v. Payne the Court ruled decided that it had misspoken, and such sentences were merely voidable after all. I'd complimented the 8th District for being out front on the issue.
Well, maybe not. On Wednesday, in State v. Simpkins, the Supreme Court not only affirmed that failure to advise of PRC rendered the sentence void, but specifically rejected the claim that it was merely voidable.
The underlying rationale might have been to avoid the mess that PRC and the Court's decisions on it have created. Simpkins had been sentenced eight years earlier, and the trial court hadn't said anything at the time about PRC. When the state realized the problem, it used RC 2929.191 to bring Simpkins back for a resentencing hearing, at which PRC could be imposed. This happened five days before Simpkins sentence was up, and he was understandably upset at the prospect of having an additional five years of PRC tacked on in such belated fashion. Of course, if the sentence was merely voidable, then Simpkins could plausibly have argued that the state forfeited its right to complain about the lack of PRC by not appealing the original sentence. By holding the sentence void, the Court eliminated that argument: you can't waive your right to appeal a sentence if the sentence is a nullity.
The problem is that what happened to Simpkins when he was sentenced was a common occurrence back then: the statute was new, many judges believed it would be held unconstitutional. RC 2929.191 was enacted primarily to cure that problem. A decision in favor of Simpkins would have eviscerated the statute, and the Court obviously wasn't willing to foreclose the ability of the state to go back and properly impose PRC on defendants still in prison. Of course, had the state waited six days longer in Simpkins' case, there's the distinct possibility that he wouldn't have a conviction at all. And somewhere down the road, the Court's going to have to deal with that.
I'm going to be on vacation next week. We're going to the Phoenix area to spend a couple days going over the Apache Trail and Saltwater Canyon, then up to the Grand Canyon for a few more. Needless to say, I won't be taking time out from sightseeing to do any blogging. I'll be back a week from Monday with the Case Update and whatever else happens in the law between now and then. I'll leave you with this:
The Good News: The Los Angeles Police Department has a special unit to fix the doors of houses that the police break down in raids where they've gotten the wrong house. The Bad News: The Los Angeles Police Department needs a special unit to fix the doors of houses that the police break down in raids where they've gotten the wrong house.
See you in about a week.
I found interesting the recent firestorm of criticism over the comments of Barack Obama's pastor, the Reverend Jeremiah Wright. For those who just emerged from a week-long stay in a sensory deprivation tank, YouTube, the Internet, and the talking heads on the cable news shows have regaled us with excerpts from Reverend Wright's sermons, in which he waxes indignant on the subject of racism in American, his comments running the gamut from the mildly unsettling (America was "founded on racism") to the appalling (calling this country "the U.S. of KKK-A") to the absurd (the government infected blacks with the AIDS virus).
I found it interesting because I think those of us who practice criminal law have a unique vantage point on race in this country. Crime is the issue along which the tectonic plates of race in this country shift. Whether it's James Byrd being dragged to his death, or a white lawyer being pounced upon and beaten savagely by a group of black kids, when we talk about crime, race is never far from the surface. And oftentimes, such as in the case of the Jena Six, the issue is so incendiary that both sides come up with wildly divergent narratives as to what happened.
This is not without basis. The black population of Cuyahoga County is about 30% of the total, yet if you go onto any floor of the Justice Center, the defendants sitting in the lobbies awaiting the results of their pretrials are overwhelmingly black. No reasonable person can dispute that blacks commit crimes disproportionate to their numbers. Whether this is because of economics or class or culture -- and it is a combination of the three -- it is ultimately perceived to be because of race.
But perception feeds reality. Driving While Black is not a relic of the 1950's, but a more recent phenomenon, in which black drivers are routinely pulled over for the most trivial of traffic violations, often resulting in "consent" or "plain view" seizures of drugs or other contraband. The penalties for possession or sale of crack, a black man's drug, are several orders of magnitude higher than the penalties for cocaine, a white man's drug. Georgia used to have a law mandating life in prison for a second drug trafficking offense; prosecutors, who were given the discretion of seeking it, did so five times more frequently for black defendants than for white ones. The law was repealed in 1996, when the state came to the embarassing realization that of 573 defendants serving life imprisonment under the statute, a mere 13 were white. It's little wonder that while blacks make up 12% of the population and comprise 13% of drug users, they are 35% of those arrested for drugs, 55% of those convicted, and 74% of those imprisoned. People talk about the devastation that crack has wrought on the black community, but give little thought to how that community might have been impacted by seeing one-third of its young males wind up in prison, on probation, or parole.
Which is why, if I had to distill my 30 years of practicing criminal law to a single observation, it would be this: It never hurts a defendant to be white, and it never helps a defendant to be black. Regardless of everybody's best intentions, the perception of race and crime will dictate the reality.
I don't know what to do about all this, and sometimes it troubles me. I find myself lapsing into stereotyping clients, and I know judges and prosecutors do, too. We have very little in common with the people we defend, prosecute, or sentence, and that eventually comes out. Empathy should play a role in a justice system -- it's hard to decide what to do with a person's life, which is basically what the system has to determine -- without having any understanding of that person. Yet we do it all the time. After a while, the faces, the stories, the presentence reports of broken homes and school failures and juvenile adjudications, all run together.
Without getting into the political stuff, there were times this year when I thought that maybe we had all reached the point where we could get beyond the racial issue. I'm really not sure that we can. I think, anymore, the perception and the reality have become indistinguishable, and neither is likely to change.
Last year, the US Court of Appeals for the District of Columbia threw out the District's gun control law, which essentially banned the possession of handguns. Yesterday, the Supreme Court heard oral argument in the case, and two things are relatively clear: First, the Court is going to confirm that the 2nd Amendment grants an individual right to bear arms, rather than a collective right connected to service in a militia. Second, no one has a real clear idea on what that will mean, or whether it will mean anything at all.
The big case out of the Supreme Court last week was somewhat timely, in light of the Eliot Spitzer saga. Jackson v. Columbus dealt with an investigation in to the city's police chief concerning allegations involving gambling, prostitution, and favoritism. Included in the subsequent report was an allegation made by a prison inmate that Jackson had impregnated a juvenile prostitute. The report noted that the inmate "had a reputation of being a 'scam artist,' a 'liar,' and 'not reliable as he uses information to his advantage,'" so Jackson sued, arguing that the publication of a report from a source such as this constituted publication with knowledge of its falsity, or recklessness in that regard, which is the necessary showing for a public official to avoid First Amendment protection for the reporting party. The lower courts didn't buy it, but the Supreme Court did, reversing summary judgment for the paper.
One of Jackson's arguments was that the investigators didn't even talk to him, and if they had, they would have learned he couldn't have fathered a child, because he'd had a vasectomy. Guess it's too late for Eliot to try the erectile dysfunction defense... In light of all this, my faithful readers can take comfort in knowing that should my own probity be questioned, I can promise you that I have spent nowhere near $80,000 on prostitutes in the last few years, as I reassured my wife last night.
On to the courts of appeals...
Well, I guess I told them, huh? Within mere hours after I'd blogged last week about the New Haven 8th-grader who'd been suspended for buying a bag of Skittles at school, the district, per this story, came to its senses, reinstated him, and cleared his record. No word on when the candy-seller is up for parole, but believe me, I'll be focused like a laser beam on clearing her, too, in my fight for Truth, Justice, and the American Way.
If you're wondering where the Case Update is, I was gone this weekend, and didn't have time to do it. It'll be here tomorrow. Meantime, I've got to give some snaps to the 8th District. Every now and then you'll see an appellate panel toss out some vague criticism of an Ohio Supreme Court decision, but it's relatively rare to see one say, in essence, "Hey, you guys got this wrong; here's what you meant to say." That's exactly what the court did in State v. Casalicchio.
Cases are becoming sort of like movie sequels. There's Godfather II or Halloween 3, and here there was Casalicchio I, Casalicchio II, and Casalicchio III. Casalicchio I involved his direct appeal from his conviction for intimidation, which was affirmed, but the court sent it back down because the trial judge forgot to tell him about post-release controls. He got resentenced two weeks before Foster v. Ohio comes down, so when he appealed that (Casalicchio II), sure enough, that sentence had to be vacated, too.
Before that last decision came down, though, he filed a motion for postconviction relief. What's relevant isn't the argument that he made, but the timing. Which brings us to Casalicchio III. The trial judge had thrown out the petition for post-conviction relief on the grounds that he'd filed it well past the 180-day deadline: he'd originally been sentenced in April of 2004, and he'd filed the petition in November of 2006.
But he had an argument: under State v. Bezak and the other Ohio Supreme Court decisions, a failure to advise a defendant of post-release controls renders the sentence void; it's a nullity, as if it had never happened. Since it was a nullity, the 180 days never started running, and thus the petition was timely.
When Bezak came down, I blogged about the problems in holding that a sentence was void, as opposed to merely voidable: under Ohio law, there's no conviction if there's no sentence. The Supreme Court's begun to see the light there, because in State v. Payne they backed away from that. In Foster, they'd similarly held that any sentence handed down under the unconstitutional statutory provisions was void, but in Payne they decided that they'd really meant that the sentences were merely voidable: that is, they were valid as long as no one contested them.
When I discussed Payne (which I did here), I'd said that the decision "goes a long way toward cleaning up the problems the Court created in not distinguishing between void and voidable sentences," but pointed out that Bezak was still out there, and predicted that the Court would "readdress, and correct, that issue within the next year."
The 8th District decided not to wait, and didn't mince any words about it:
the reasoning in Bezak was flawed, as it was in Foster, with respect to classifying a sentence as void. It is our view, that after Payne, the holding in Bezak, regarding the use of the word "void," is no longer correct. Payne makes it clear that the Supreme Court erred when it labeled a sentence "void" -- because the trial court had jurisdiction to impose the sentence. Therefore, the holding in Bezak, that a sentence that does not properly include postrelease control is "void," should actually be "voidable."
Of course, since it's only voidable, it's not a nullity, the 180-day clock started to run in April of 2004, and Castalicchio's petition for PCR is untimely.
I've been critical of some of the opinions out of the 8th District lately, but I've got to give them a lot of credit for this one. Most courts would have been content to parrot the language from Bezak, but the court here analyzed the situation, took into consideration the developing case law from a related area, and came to a logical, well-supported conclusion. That's the way things are supposed to work.
Actually, an advanced course. LawProse.org is a web site run by Bryan Garner and dedicated to the better legal writing, and on getting you to pay Bryan Garner money to tell you how to do better legal writing. Nothing wrong with that. One of the interesting features of the site, is the Educational Videos, which features short excerpts from interviews with a wide variety of judges, including Supreme Court Justices, telling you what they do and don't like.
Some of it is fairly banal. A recurring theme is that judges have to wade through a lot of briefs, so you should make sure yours stands out a bit. How? Make sure they're not badly written. Gee, that's helpful. Actually, Clarence Thomas comes up with a somewhat interesting take on this: if he sees a 20-page brief, that's the one he's going to pick up, rather than the one that maxes out the Court's limit of 50 pages. And some of it is contradictory. Scalia says don't bother writing a summary of your argument: "I mean, why would I read the summary if I'm going to read the brief? Can you tell me why I should read it?" But Thomas says that a summary is essential, because it's a preview, "like, what's going to be on TV next week."
But Garner's also posted a section on the web site which contains the complete interviews with eight current Supreme Court Justices. (Souter declined the invitation.) I haven't gone through it all, but it makes for some interesting listening, discussing not only the justices' views on briefs, but their own legal writing experiences.
One thing I got a kick out of was Scalia's comment about typos in briefs. "My goodness, if you can't even proofread your brief, how careful can I assume you are" about the legal citations?
I'm a little more forgiving about that sort of stuff, but on the other hand... A year ago, I took over an appeal to the Supreme Court in a criminal case. The assignments of error the other lawyer had put together for the brief in the court of appeals were as follows:
I. The sentencing criterea imposed by the State of Ohio through Revised Code 2929. as interpreted in State v. Foster 109 Ohio St.3d 1 violates the Sixth Ammendmant of the Constitution of the United States.
II. The trial court erred in imposing the maximum consecutive sentence allowed upon the appellant, violating the constitution of the Sate of Ohio and the United States of America.
III. The trial court erred in allowing bail money, provided by the wife of the appellant to be applied to fines levied, constiuting an unlawful taking of property in violation of the Constitution of the United states and the State of Ohio.
Frankly, if I'd been the judge, I probably would have put the brief down at that point, too.
Oh, and if you're wondering, this wasn't an assigned appeal. The lawyer had gotten in the low-to-mid five figures for this masterpiece.
Got work to do, so let's throw out some stuff I ran across:
Well, no, it doesn't always stay in Vegas. With a hat tip to Overlawyered comes this story of Arelia Taveras, an up-and-coming New York lawyer -- she'd worked on the 9/11 lawsuits -- whose career crashed upon revelations that she'd stolen about $100,000 from various clients to feed her gambling addiction. As I've mentioned before, we lawyers don't exactly overexert ourselves preaching personal responsibility -- telling a potential client that it's his own damned fault for putting his hand into a running lawnmower isn't going to put food on anyone's table -- and Taveras isn't an exception to that: she's suing the casinos in Atlantic City and Las Vegas for $20 million, claiming that they should have known of her addiction and cut her off.
"They knew I was going for days without eating or sleeping," Taveras, 37, said. "I would pass out at the tables. They had a duty of care to me."
Yeah, I mean, it's not like it's her fault or anything.
The War on Candy. New Haven residents can sleep easier tonight. Despite being an honors student, 8th-grader Michael Sheridan was stripped of his class vice-presidency and suspended for three days for buying (pick one: heroin/marijuana/ritalin/none of the above) at school.
The answer? None of the above. He bought a little bag of Skittles. It turns out that candy sales in school were banned five years ago, this story tells us, "as part of a districtwide school wellness policy."
The most pathetic part of the article is this line: "[Sheridan] says he didn't realize his candy purchase was against the rules, but he did notice the student selling the Skittles on Feb. 26 was being secretive." No wonder she was being secretive. If he got a three-day suspension (later reduced to one) for buying candy, what did the seller get? Probably this.
You know, we baby boomers look at what goes on in schools nowadays and like to say, "If I'd come home and told my dad I'd done something like that, he'd have beaten the tar out of me." Well, that's true, but on the other hand, I imagine if I'd come home and told him I'd been suspended for buying a bag of candy in school, he might have gone up there and beaten the tar out of the principal. And rightly so. This is just nuts.
Reasons you don't want to go to jail: "Compassion" isn't part of the skill set that they're looking for in corrections officers.
The Columbus Seven heard oral arguments yesterday and today on nine cases, several of which could be significant. (I mean, if they weren't, the Supreme Court wouldn't hear them, right?) A rundown:
Howard v. Miami Township Fire Division. (Links are to court of appeals decision.) On January 24 of 2004, the Miami Township Fire Division decided to conduct a live fire drill by burning a house several times. Later that night, Christopher Howard ran off the road and crashed into a tree, killing himself, allegedly because of ice which had formed on the roadway from the runoff of the water used to put out the fires. The court of appeals had reversed the trial court's grant of summary judgment to the fire division on sovereign immunity grounds.
There are several cases before the Court on sovereign immunity, and the Court might use them to provide some much-needed clarification of the law in this area. Or not; the issues raised by the appellants in Howard basically revolve around what constitutes an obstacle in the roadway. Like we need some clarification of that.
Kraynak v. Youngstown School District. Could be interesting: raises the issue of the child abuse reporting requirements for teachers, nurses, lawyers, doctors, and just about everybody else in the world under RC 2151.421. The trial court instructed the jury that the test for determining whether the reporter should have believed that abuse had occurred was subjective, and allowed an expert witness to testify that the reporter should determine this question from the "totality of the circumstances." Problem was that the statute doesn't say anything of the sort, so the court of appeals reversed it.
State v. Mercier. I talked last week about the Belton rule: that as part of a search incident to the arrest of an occupant of a car, the police can search the passenger compartment and any containers found in it. This case presents the Belton situation with a twist: the "container" was a purse being carried by a passenger in the car. The proposition of law the Court accepted jurisdiction on puts the issue quite squarely: "A purse being carried or worn by an automobile passenger may not be searched if the passenger is not subject to search." The search was upheld by both the trial and appellate court, and I'd be real surprised if that changed.
Burnett v. Motorists Insurance. A number of years ago, I handled a case where hubby was driving the car with wifey in it, and ran into a tree, the accident necessitating extensive work on wifey's teeth. We made a claim against the hubby's insurance, which had the minimum limits of $12,500. (Which didn't surprise me; a few years later, wifey came in and wanted me to handle a case where she fell while getting off an RTA bus at the place where she received her drug rehab treatment. Didn't take that one.) Anyway, it was the quickest and easiest four large I ever made.
Not any more, because almost all insurance families now contain an "intra-family" provision, precluding coverage for a claim by one family member against another. In fact, our state legislature gave yet another Greek salute to the insurance lobby a few years ago and amended the law just to permit that.
And that's what happened in Burnett: she was a passenger in a car being driven by her husband, and sued him when he got into an accident. The trial court found the policy provision prohibiting coverage ambiguous, and refused to enforce it. Motorists took it up to the 11th District, which said, "Hey, we don't find any ambiguity," and reversed it. The judge, being no dummy, then entered summary judgment for the insurance company. The plaintiff then took it up, and the same court of appeals -- two of the same three judges, in fact -- reversed again, this time on the grounds that the provision was unconstitutional as a violation of equal protection.
Great decision, if you're a plaintiff's lawyer, but don't go buying that beach house with the fees you expect to get if the Supremes uphold the decision, because it says here the chances of that happening are slim and none, and Slim just rode out of town.
What a difference a quarter-century makes. A few months back, I wrote about Fortune v. Castle Nursing, the 9th District decision upholding an arbitration provision in a nursing home contract. The 70-year-old resident in that case had filed an action against the nursing home for negligence in allowing her to fall, but the court decided she hadn't submitted sufficient evidence to show that the arbitration provision was procedurally unconscionable. After all, the court noted, she was 70 years old, had a high school education, and had purchased two cars and a home during the three-score and ten years she spent shuffling along this mortal coil , thereby demonstrating her business acumen. Plus, she'd had the agreement for two whole days before signing it.
A couple weeks back the 8th District evened things out in Hayes v. Oakridge Home, holding that the arbitration provision there was both substantively and procedurally unconscionable, and reversing the lower court's decision to enforce it. Hayes presented the exact same type of situation -- nursing home resident sues home for negligence in allowing her to fall -- except for one thing: Hayes was 94.
It's Sunday morning, our house is buried in 18 inches of snow, and it's a race as to what's going to get to the sidestreet we live on first: a snowplow, or summer. To top it off, a pipe under our bathroom sink broke, and we've got as much chance of getting a plumber here today as Britney Spears does of winning Mother of the Year. I was thinking of calling in the National Guard to write this post, but I guess I'll suck it up and get to it. Not like there's going to be anything else to do.
Nothing out of DC this weekend; the Gang of Nine is girding their collective loins for the oral argument in the big gun rights case next week. The Court has announced that they will release the audio of the argument as soon as it's concluded, and Scotusblog will have that, plus a downloadable version shortly thereafter, plus the transcript that afternoon.
Down in Columbus, the Gang of Seven churned out a number of decisions of import. In Sexton v. Mason, they held that the statute of limitations for a continuing trespass case began to run when the trespasser's tortious acts have been completed, even if the damage continues after that. In State v. Fugate, they ruled that when a defendant is sentenced to concurrent terms of imprisonment, he gets jail time credit toward all of the terms, not just some of them. In that case, the judge had sentenced Fugate to prison for burglary and theft, and also determined he'd violated his community control sanctions on another case, and ordered that sentence into effect as well, running that one concurrent, but not giving him credit for the 213 days he'd spent in jail awaiting resolution of all the cases. And the decision in Rosen v. Celebrezze is a must-read for divorce lawyers handling multi-state custody issues: four months after moving to Ohio, the mother had filed a divorce complaint, and the Court held that Ohio courts were barred from considering the custody issues because of the provision in the Uniform Child Custody Jurisdiction Enforcement Act that the child must have been a resident of the state for the preceding six months.
On to the courts of appeals...
Goofiness abounds. From the Overlawyered comes the story of two private school teachers in Seattle who filed a complaint against the school for hostile workplace environment. Whatever the merits of their other claims in that regard, they were substantially diluted by this one:
Among the plaintiffs' complaints was [the school's] invitation to conservative commentator Dinesh D'Souza to speak as part of a distinguished lecture series.
D'Souza has been an opponent of affirmative action, and argues that the problems that blacks currently encounter are due not to racial discrimination but to cultural differences. Whatever the merits of that view, it's a pretty sorry state of affairs when the mere expression of it can constitute a hostile environment. Take that back; it wasn't D'Souza's expression of those ideas, but the school's simple invitation to him to discuss them to which the plaintiffs took offense.
There's a fair amount of that going around. Concurring Opinions has a piece on Keith Sampson, a student and employee of the Indiana University - Purdue University Indianapolis, who was disciplined under the University's prohibition of racial harassment. His crime? Reading a book entitled Notre Dame versus the Klan. The book focuses on a 1924 incident in which several Notre Dame students fought members of the Ku Klux Klan, a result largely of the latter's anti-Catholic focus. Two of his co-workers objected to Sampson's reading the book -- on his break, no less -- apparently because it had "Klan" in the title. Back about eight months ago, I reported on a story where the Massachusetts NAACP protested that a government manager had a coffee cup with the Confederate flag on it; actually, the coffee cup had a reproduction of a painting of Pickett's charge on it (it had been purchased by the manager's son on a trip to Gettysburg), and the Confederate soldiers were, for some inexplicable reason, carrying a Confederate flag, which was apparently discernible to those equipped with Superman-like vision.
Ultimate Plaintiff's Zero-damages Verdict. Apparently, the attorneys for US District Judge George Schiavelli must have thought he was pretty badly injured in a fall from a malfunctioning escalator in 2005, because they asked the jury to give him $21 million. To be sure, the judge had to have operations on one knee and hip, and will be facing other surgeries, but the jury apparently figured that $21 million was a bit much, so they gave him a lower figure. Lower by $21 million, to be exact. His lawyer, after taking quick time out to calculate what 40% of nothing is, blamed it on The Way Things Are Nowadays: "The bias against judges in today's world is just palpable." Well, from reading the cases and talking with lawyers, it seems one of the best ways to wind up with a turned-off jury is to ask them to give your client what's equivalent to the GDP of a Central American country.
Presidential candidates and crack retroactivity. In light of the Ohio primary this past week, it's a good idea to articulate the three rules by which I run this blog: (1) no political discussions, (2) be civil, and (3) no political discussions. I'm going to deviate from that slightly because there's one thing I find disturbing. As this article from the Huffington Post notes, Hillary Clinton is opposed to the retroactive modification of the crack/cocaine sentencing disparity. (Discussed here.) As Doug Berman notes in his Sentencing Law and Policy blog, this puts Hillary on the same side as the Bush administration and the Republican members of the Senate Judiciary Committee. Not meaning to be overly political, but on this issue at least, that's not good company as far as I'm concerned.
Shooting the (hired) messenger. Finally, Decision of the Day gives us the cautionary tale of Dr. Barry Swerdlow, a plaintiff's expert witness in a medical malpractice case. For a variety of reasons, mainly lack of preparation and an unwillingness to display the evasiveness of the normal expert when cornered, Dr. Swerdlow pretty much gave the game away on his deposition, and the plaintiffs got bounced on summary judgment for failure to establish proximate cause. That, the plaintiffs claimed, was supposed to be Swerdlow's job, so they then turned around and sued Dr. Swerdlow, their litany of woe including claims of fraud, professional malpractice, breach of contract, and tort. The district court tossed it out, but the 10th Circuit reverses, over the dissenter's protest that all the decision accomplishes is to "make candor an expensive option and risk incenting experts to dissemble rather than change their views in the face of compelling new information."
I think the compelling new information that Dr. Swerdlow gleaned from his experience is not to get within five miles of a courtroom in the future.
As Justice Frankfurter put it in a concurring opinion back in 1961, "the course of true law pertaining to searches and seizures has not -- to put it mildly -- run smooth." That's been particularly true of vehicle searches. The automobile exception and the inventory exception were created to deal with the special problems that cars presented to traditional 4th Amendment jurisprudence. Search incident to arrest has also presented problems. The purpose of that exception, of course, is to allow the police to search a defendant or the immediate area around him for weapons, contraband, or evidence, to prevent him from gaining access to those items. While the search of the person himself is clearly permissible, what if he was just taken out of a car? Can the police search the car, too? And, if so, what portions? Just the area was occupying? A glove compartment?
Back in 1981, the Supreme Court pretty much threw up its hands at all this and, in New York v. Belton, adopted a "bright-line" rule:
We hold that when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile... It follows from this conclusion that the police may also examine the contents of any containers found within the passenger compartment, for if the passenger compartment is within reach of the arrestee, so also will containers in it be within his reach... Such a container may, of course, be searched whether it is open or closed...
As a reading of the opinion in Belton makes clear, the driving force was a desire for simplicity: everybody would know exactly what could be done. And that's been the law for over a quarter century.
Flash forward to 1999, where a couple of Tucson police officers go to arrest someone they suspect of drug trafficking. When they get to his house, they see the suspect pull into his driveway, get out of his car, and walk toward them. They promptly arrest him, handcuff him, and put him in the back of the police cruiser, then go about searching the car, finding a gun and a plastic baggie of cocaine.
This was a bit too much for the Arizona Supreme Court, which tossed the search. It distinguished Belton on the basis that that case dealt only with the boundaries of a search incident to arrest, while Gant presented the question of whether such a search was necessary at all; while in Belton, the four occupants of the car were standing by the roadway at the time of the search, and arguably could have re-entered the car and gained access to a weapon or destructible evidence, Gant, from his position in the back of a cruiser, handcuffed and under the watchful eye of a police officer, posed no danger of doing that.
How this is going to play out in the US Supreme Court is another matter. One of the clues might be how the latter court framed the issue, granting cert on the following question:
Does the Fourth Amendment require law enforcement officers to demonstrate a threat to their safety or a need to preserve evidence related to the crime of arrest in order to justify a warrantless search incident to arrest conducted after the vehicle's recent occupants have been arrested and secured?
The facts in Gant are about as unfavorable as they could be to the prosecution for a case on this: there was no probable cause to search the car, it was legally parked so it wasn't going to be impounded and subject to a later inventory search where the gun and drugs would have been found anyway, and there was no connection between the car and Gant's arrest; it makes no more sense to have searched his car after he exited it and walked away from it than there would be to have searched his car if he'd just walked out the front door of his house. On top of that, the only way Gant would have less access to the car at the time of the search is if the police had already transported him to the station.
So why'd the Court take the case? Given what they said in Belton, it's hard to believe that they're going to require a police officer to make an on-the-spot determination of whether there's a "threat to safety or a need to preserve evidence." They could adopt another "bright-line" rule: when the defendant has been handcuffed and no longer has any access to the car, there's no longer any basis for searching it incident to arrest. But that creates a whole 'nuther set of potential fact situations, and could indeed lead to the unintended consequence of the police not securing a defendant just so they have the ability to search the car.
If I had to guess, I'd say that the Court's going to focus on the "recent occupant" part of the equation, and hold that as long as the defendant hasn't been transported from the scene, the police still may search his vehicle incident to that arrest. That has the sole virtue of simplicity, and one might legitimately argue that that virtue is not sufficient to overcome the damage such a decision would do to any logical construct of Fourth Amendment law, particularly as it applies to cars. Then again, one might legitimately argue that there's not much damage left to be done.
The 2nd District came down with an interesting, and somewhat gutsy, decision the other day in State v. Russell. Whether it was the right one is pretty much a matter of perspective.
Sometimes when doing the Case Update I come across decisions which require, as they say in the law biz, "more extended treatment." Come to think of it, they probably say that in the plastic surgery biz, too. Anyway, a little bit more on some recent decisions:
Nothing going on in Columbus, but the US Supreme Court this week granted cert in two criminal cases. Pulido v. Crones is a 9th Circuit habeas decision, and might afford the Court an opportunity to decide whether a defective jury instruction is a "structural error," which of course always necessitates reversal, or whether it can be judged under the "harmless error" standard. Arizona v. Gant involves the question of how far the police can go in searching a vehicle after arresting the occupants, and I'll have more on that later this week.
Before we go onto the courts of appeals, some of you may be wondering why there's a paucity of 1st District decisions any more. Seems that they've changed their policy with regard to accelerated docket decisions: those aren't considered "opinions" any more, and aren't published. Last year, the 1st District handed down 226 opinions. In the first two months of this year, they've handed down nine. Two of them did make the cut this week, though...
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