April 2008 Archives
The Ohio Supreme Court handed down a couple of criminal law decisions in the past few weeks. One has relatively narrow impact; the other could have substantial significance. I'll talk about the latest speedy trial case today, and a decision on the mens rea requirements in indictments tomorrow.
The first is State v. Blackburn, which deals with how the speedy trial statutes affect serial prosecutions, i.e., either where the prosecution dismisses an indictment, and then reindicts the defendant, or where it subsequently adds new charges arising out of the same facts. The law's pretty clear that if a defendant's indicted, the charges get dismissed, and then the prosecution refiles the indictment, speedy trial carries over: all the time run up during the first case is carried over and applied to the second. (Needless to say, if additional charges are simply added, the speedy trial clock continues running from the time of the original arrest.) This applies regardless of whether the new indictment is the same as the old one, as long as the new indictment arises out of the same incident, and the state had sufficient knowledge to bring the charges at that time.
The question, though, is what happens if the defendant has waived time, or filed motions which toll the time, in the first case: does that carry over to the second?
The first time the court addressed that question was in State v. Adams, back in 1989. In that case, Adams had been charged with DUI under one section of the statute, then subsequently with the same offense but under a different section. In the first case, he'd waived time to a specific point on several occasions, but the court held that these didn't carry over. Why? Because for a waiver to be valid, it "must be done knowingly, voluntarily, and intelligently." Since the charges against Adams in the second case weren't the same as in the first case, his waiver in the first couldn't meet that test.
The issue next came up in 2000, in State v. Homan. In that case, the defendant was originally charged with DUI, and filed a motion to suppress. The state subsequently added a charge of child endangering, based on the same facts, but the Supreme Court held that the tolling caused by the filing of the motion to suppress didn't apply to the subsequent charges. Again, the defendant's unawareness of the new charges was critical:
When a defendant is unaware of the precise nature of the crimes charged, he or she cannot make informed and intelligent tactical decisions about motion filings and other matters.
So now we get to Blackburn. The defendant had been arrested for "illegal conveyance of weapons or prohibited items onto the grounds of a detention facility or institution" in December of 2004. The charges were dismissed five days later. He was indicted on the same offense in February of 2005, and after several continuances requested by the defense, mainly to get new counsel, the prosecution dismissed that case in December of 2005. It then reindicted him, this time for trafficking in drugs, in February of 2006.
The trial court tossed it, and the appellate court affirmed, finding that the delays in the previous case didn't carry over into the present one, based on Adams and Homan. The Supreme Court reached a different result, making a galliant, if eventually unconvincing, attempt to distinguish both of the earlier cases.
The Blackburn court first drew a distinction between waiver and tolling. In Adams, the defendant had waived time to a specific point; in Blackburn, the defendant had filed motions which tolled the time. The effect was the same -- the running of the speedy trial was suspended -- but the outcome is different: The time tolled by Blackburn's motions are counted against him, while Adams' waivers are not counted against him.
The distinction between waiver and tolling makes some sense, I suppose, although that distinction is undercut by the analytical error in Adams: in that case, the court applied the test for waiver of a constitutional right to the waiver of a statutory right. More troubling, though, is the Blackburn court's treatment of Homan. It's difficult to reconcile Blackburn and Homan, and the court makes a half-hearted stab it:
Unlike Homan's tactical decision to file a motion to suppress, Blackburn filed the motion to continue the trial to allow his newly hired counsel time to prepare.
Why one is a "tactical" decision and the other isn't is not explored further. More problematically, Blackburn winds up overruling Homan without ever saying so. Here's the syllabus from Homan:
When a criminal defendant files a pretrial motion and the state later files against the defendant additional, related criminal charges, R.C. 2945.72(E) does not extend the time within which the defendant must be brought to trial on those additional charges.
And from Blackburn:
In calculating the time within which a criminal defendant must be brought to trial under R.C. 2945.71, periods of delay resulting from motions filed by the defendant in a previous case also apply in a subsequent case in which there are different charges based on the same underlying facts and circumstances of the previous case.
The reference to 2945.71 in the latter case is somewhat misleading; although that is the general statute on speedy trial, "periods of delay resulting from motions filed by the defendant" are governed by -- you guessed it -- 2945.72(E).
So what's a poor lawyer (or judge) to do? The net effect of Blackburn is to continue the court's trend of turning the admonition that the speedy trial statutes are to be construed strictly against the state on its head. In fact, the court expressly states that the "the public's interests. . . in the prompt adjudication of criminal cases" has to be balanced against the interest "in obtaining convictions of persons who have committed criminal offenses against the state." While that may be true, there have been very few cases in the past decades which indicates that this court places much if any importance on the public's -- and the defendant's -- interest in prompt adjudication.
A couple months back, I had a case where the police got a call from a gas station saying that my client was annoying customers. The police responded, and saw my client standing by a building across the street. They searched him and found some crack. The basis of the search? It was incident to his arrest for disorderly conduct.
Now, I could have argued that there was no probable cause to arrest for disorderly conduct. Let's face it, if "annoying" people was a crime, half the people you know would be in prison. I took the easier tack: I pointed out to the judge that disorderly conduct was a minor misdemeanor, and under Ohio law, you can't arrest someone for a minor misdemeanor. She agreed, and tossed the case.
After last week's decision in Virginia v. Moore, the validity of that argument's a little more open to question.
Today's menu features Virginia v. Gray, a notable US Supreme Court decision on search and seizure, which I'll discuss in more detail tomorrow. Closer to home, their Ohio counterparts handed down Columbus v. Kim, upholding that city's noise ordinance against a claim of unconstitutionality, concluding that whatever one's standards of "unreasonably loud" was, it was met by a dog barking for an hour and a half so loudly that it could be heard over a running lawnmower. The court also handed down another decision in a speedy trial case, with a result that's sure to astonish you. Yep. Shocking, I tell you. Shocking. We'll talk about that on Wednesday, along with another case that came down a few weeks back.
On to the courts of appeals...
Russ' Excellent Adventure. As I told you earlier this week, I spent yesterday morning in Cincinnati in oral argument before the 6th Circuit Court of Appeals. Actually, it wasn't "the morning"; it was about ten minutes. I was one of ten defendants' counsel sharing ninety minutes of oral argument about the events of the ten-week trial of the Outlaw Motorcycle Club on various RICO counts back in 2004.
Two other lawyers in my office tried the case, and they got me assigned the appeal. Seemed like a good idea at the time, until I realized two things. First, although I know a fair amount of constitutional law, I know very little Federal criminal law, especially about arcane subjects like the RICO statutes. Second, the transcript, as mentioned, was 8,100 pages, and that isn't even the half of it: the appendix, which in Federal appeals comprises the transcript and all relevant documents, like the indictment, motions, journal entries, etc., came to 30,000 pages.
This, in turn, produced a twin series of recurring nightmares over the course of my representation. In the first, I would get a journal entry from the appeals court, before I'd even looked at the transcript, telling me my brief was due in 20 days, with no extensions permitted. (A variation of the "didn't study for the final and don't know where it's being held" dream. Yes, I've had that one, too.) The other was one in which I would do what I believed was sufficient research, and finally write the brief and send it off, only to get the government's reply, which was rich with phrases like, "Defense counsel's buffoon-like reliance on US v. Wilmot is misplaced, given that the case was specifically overruled by this court four years ago," or "Defense counsel's imbecilic insistence on an analysis of the RICO statutes which has been rejected by every court it has been presented to suggests that his brief serves no purpose other than to lay the foundation for a claim of ineffective assistance of appellate counsel."
Of course, none of that materialized: I got through the transcript, wrote a brief which apparently analyzed the appropriate issues in an appropriate fashion, and got up and gave an argument for which none of the judges felt compelled to laugh out loud, let alone throw vegetables at me. Nightmares don't usually come true.
Except for that one about the test.
Boys and their toys. I've always marveled about the contrast in police work between the suburbs and the city here in Cuyahoga County. You'll go to a pretrial on a rape case that happened in Cleveland, and the police report will be three pages long; a report on a shoplifting out of the suburbs will be four times that.
I had a pretrial on a drug case earlier this week, out of North Olmsted, one of the western suburbs. The detective was there to explain what had happened, and he led me through the chain of events, beginning with "complaints of drug activity at that address," leading to a controlled buy of drugs, and shorly thereafter culminating in a raid conducted by the city's SWAT team. "SWAT team?" I said. "What'd you need the SWAT team for?" The detective assured me that they had a "formula" for deciding when to bring the SWAT team along, and my client was "off the charts."
This was all over a controlled buy of sixty dollars worth of marijuana. My client was 52 years old, had a fourth degree felony drug abuse in 1994, and an aggravated assault in 1980.
Guys, if you need a SWAT team for something like that, you probably shouldn't have one.
Technology marches on. I talked a few days ago about the Supreme Court's decision on capital punishment in the Baze case, and Doug Berman's Sentencing Law & Policy blog had an interesting alternative take on the decision:
a majority of the Justices' opinions (4 of the 7) cited to websites, and I counted a total of 13 references to website materials. Among the cites, Justice Stevens' referenced a forthcoming law review article now appearing only on SSRN, and two opinions cited to two distinct transcripts from legal proceedings that have been made widely available through on-line posting.
Needless to say, Ohio remains behind the curve in that respect; I've yet to see a decision, either from the Supreme Court or any of the appellate districts, which cites anything on the Internet. In fact, I wouldn't be surprised if most judges' understanding of how the Internet works paralleled that of Alaska Senator Ted Stevens:
They want to deliver vast amounts of information over the Internet. And again, the Internet is not something that you just dump something on. It's not a big truck. It's a series of tubes. And if you don't understand, those tubes can be filled and if they are filled, when you put your message in, it gets in line and it's going to be delayed by anyone that puts into that tube enormous amounts of material, enormous amounts of material.
That may change. There are several judges at the 8th District who read this blog with some degree of regularity, and I ran into one of them the other day, who told me that they'd briefly discussed citing my blog in a recent opinion.
Apparently, everybody sobered up after that, but I'm getting those tubes ready just in case.
They's had all they can take in the City of Brotherly Love, and they's not gonna take no more:
Four veteran criminal defense lawyers sued the city and its court system yesterday, contending that fees paid to court-appointed lawyers for indigent defendants were "grossly inadequate" and that, as a result, defendants were being denied their constitutional rights to adequate legal representation, a speedy trial, and due process under the law.
The fees do appear pretty miserly. You get $650 for a felony, plus $350 for each day of trial. For handling a case that results in you spending a week in trial, that works out to $2,400, hardly a princely sum for an experienced criminal defense attorney.
Well, boo hoo. Let me introduce you to Ed La Rue and Joan Hall. Up here by the Cuyahoga River, Ed is a highly-skilled and well-respected criminal lawyer. Joan Hall not so much: she was indicted back in 2006 for running a retail rip-off scheme involving stealing merchandise, and then returning it to the store for a refund. And this wasn't a minor-league scheme by any stretch; the county indicted Hall and her daughter on some 79 counts of corrupt activities, forgery, money laundering, and theft, claiming that the fraud had gone on for years and allowed Hall to amass over a million dollars, which she stuck in offshore accounts.
Hall's path and La Rue's didn't intersect directly; both Hall and her daughter had the coin to retain counsel. But Joan Hall, who was 67, had a 76-year-old boyfriend, and the prosecutor tossed in five counts against him as well. He'd become homeless by this time, and so, as an indigent, was entitled to appointed counsel. That's where Ed La Rue comes in. He got assigned to the case in January of 2006.
Nearly a dozen pretrials and hearings later, the case finally went to trial in March of 2007. It took five weeks. All of the defendants were convicted, and the case having finally been concluded, Ed submitted his fee bill for his sixteen months of work on the case, including spending the five weeks in trial.
Ordinarily, Ed would have been entitled to $900. That's the maximum fee for appointed counsel in a first-degree felony case in Cuyahoga County. Read those sentences again. That's not a typo. $900.
But wait! There's good news! Under the Cuyahoga County local rules, appointed counsel is entitled to ask for "extraordinary fees." Hell, Ed probably should have asked for hazard pay; the court's docket contains this tantalizing entry, from March 28, two weeks into the trial:
DEFENDANT IN COURT. COUNSEL EDWARD R LA RUE PRESENT. DEFT REMANDED. DEFT'S PRESENCE IN COURTROOM HAS BEEN WAIVED AS NECESSARY TO RESOLVE HEALTH CONCERNS. DEFT HAS ACTIVE SCABIES.
Ed submitted his application for extraordinary fees. Sure, the 180-plus hours he spent on the case would only be reimbursed at the rate of $40 or $50 an hour, depending upon whether it was in court or not, but that's a damned sight better than $900.
Ed's application was turned down. For all the time he spent in the case, he wound up getting less than $5 an hour. If Ed had been an employee of the County, the County could have been Federally prosecuted for paying him what it did.
Someday, the attorneys in this town are going to have the balls to do what the attorneys in Philadelphia did.
Travel day for yours truly; I'm off to Cincinnati for an oral argument before the 6th Circuit. I'm representing one of fourteen defendants, members of the Outlaw Motorcycle Club, who were tried back in 2004 on various RICO, drug, and gun charges. The trial took ten weeks, and resulted in an 8,100-page transcript. Talk about justice delayed: my client was sentenced to eight years in prison, and had spent four years in prison awaiting trial. The trial took place, as noted, in 2004. You do the math.
There are going to be 11 defendants at oral argument, sharing 90 minutes of time. I'd suggested that we have just one lawyer do the argument, while the rest of us stood in the background and chanted, Greek-chorus-like, something appropriate, like "they're not guilty," or "no justice, no peace." Cooler heads prevailed.
Anyway, I don't have time to do much blogging, so I'll just toss out some random observations about Baze v. Reese, the US Supreme Court's decision last week affirming lethal injection as a constitutional method of imposing the death penalty. Not surprisingly, the 7-2 decision resulted in seven opinions from the nine judges: a three-man plurality opinion, five concurrences, and one dissent. The most curious of the opinions was probably Stephens', in which he suggested that the death penalty was unconstitutional, but nonetheless concurred in the judgment.
I'm opposed to the death penalty, although I have qualms about it. I used to be morally opposed, but there is some recent research which suggests that capital punishment does have a deterrent effect. (You can read a good article about the debate here.) If it's true that the death penalty saves lives, that puts its moral opponents in a quandary: you're actually arguing for a policy -- the abolition of capital punishment -- that will result in more deaths.
The possibility of executing an innocent man is certainly a factor -- at last count, 128 people had been freed from death row upon determination that they were innocent -- but to be blunt, there's very little evidence that anyone who's been executed since the death penalty was restored in 1976 was actually innocent. What's more, given the concept of residual doubt, which is applied at both the the trial and appellate levels, it's hard to see that happening in the future.
My major problem with capital punishment is its distortive effects on the criminal law as a whole. The penalty is so qualitatively different from everything else that it consumes far more attention than it otherwise might warrant, leading to changes changes in the law which have little effect on the death penalty, but great effect on other aspects of criminal law, even though those effects might not have been intended.
For example, habeas corpus used to be a widely used mechanism to obtain relief from constitutional violations in state courts. As a result of perceived "abuses" in the process, which resulted in capital defendants postponing their dates with the execution for a decade or more, Congress in 1996 passed the Anti-terrorism and Effect Death Penalty Act. As anyone who does habeas nowadays can tell you, the AEDPA imposed such great restrictions on the use of habeas, and made the standard of review so deferential, that relief is almost impossible; a recent review of 1,946 non-capital habeas cases showed that 7 -- count'em, 7 -- had been granted.
A similar result arose from the use of life imprisonment without parole. Originally, it had been proposed by opponents of capital punishment as an alternative to death. It may have been effective in that regard; Gallup now shows that the public, when offered the choice between imposing death and imposing life imprisonment without parole, is fairly evenly split.
Or it may not have been effective. The authors of this Harvard study concluded that offering the penalty as an alternative had little consequence: the frequency of death being imposed in states with LWOP was not any different from the frequency of it being imposed in states which didn't offer that alternative. What did happen, though, was that the number of people serving LWOP drastically increased. Why? Because once the penalty was adopted, legislatures applied it to a wide range of crimes, such child rapes, "third strike" laws, and so forth. The net result was that the number of people serving LWOP has tripled since 1992; defendants who never would have been at risk of suffering a death sentence are now in prison for life.
Given the infrequency with which the penalty is imposed any more -- only 42 people were executed in the US last year -- I'm not sure the game's worth the candle.
And there's an element of unreality to it, too, which is captured by this portion of Stephens' opinion in Baze, discussing the first of the three-drug "cocktail" used in executions:
Because it masks any outward sign of distress, pancuronium bromide creates a risk that the inmate will suffer excruciating pain before death occurs. There is a general understanding among veterinarians that the risk of pain is sufficiently serious that the use of the drug should be proscribed when an animal's life is being terminated. As a result of this understanding among knowledgeable professionals, several States--including Kentucky--have enacted legislation prohibiting use of the drug in animal euthanasia. It is unseemly--to say the least--that Kentucky may well kill petitioners using a drug that it would not permit to be used on their pets.
If you didn't see the Case Update when you checked here yesterday morning, it's posted below. I screwed up and set it to show up at 7:40 in the evening instead of 7:40 in the morning, and didn't catch it until noon.
Since most of my readers are from Cuyahoga County (the other one's in Cincinnati), I figured I'd do a post on several 8th District cases in the last few weeks which merit some special attention, dealing with speedy trial, expert testimony in child rape cases, and the drunk driving statutes. Now there's an eclectic mix...
Busy time for the Nine in DC. The Supreme Court affirms lethal injection as a method of executing people, which will come in handy if it decides that child rape can be punished by death; it had the argument on that last week. It also had two rulings on the armed career criminal act, which imposes a 15-to-life sentence for someone convicted of being a felon in possession of a firearm if that person's had three prior violent felonies or drug offenses. In Begay v. US, they decided that a prior felony DWI wasn't a violent offense, but in Burgess v. US, they held that a drug offense for which the defendant was imprisoned more than a year -- the definition of a felony under felony law -- meant it was a prior felony drug offense, even if the state law classified it as a misdemeanor. And talk about speedy justice: cert was granted in Burgess only last December, and the ruling was made three weeks after argument. The best indication of how clear-cut the ruling was is not just the fact that the decision was unanimous, but that the government lawyer received so little questioning at argument that she used only seven of her thirty minutes.
Down in Columbus, the Ohio Supreme Court handed down a bunch of decisions in various workers compensation cases, of which no more will be heard here. In State ex rel Liwinski v. Unruh, it decided various questions regarding RC 2323.42, which allows medical malpractice defendants to file a motion requiring the court to determine whether the plaintiff has "good cause" for continuing the lawsuit, and awarding attorney fees for the defendant if the court decides the plaintiff didn't. That's what happened in this case, although the timing was rather odd: the court granted the motion after denying the defendant's motion for summary judgment.
And on the legislative front, the state House passed a law adopting the "castle" doctrine, making it clear that a homeowner confronting an invader can use deadly force without being required to retreat. Probably a good idea, although this seems to be a cure in search of a disease; somehow, all those cases of homeowners being prosecuting for shooting burglars in their homes seem to have escaped my notice.
On to the courts of appeals...
I lied again. Turns out that my 500th post wasn't last Thursday, like I said, but on Monday. Oh, well, one of the reasons I went to law school is they promised there wouldn't be any math.
Speaking of reasons I went to law school, I recommended my blog to another lawyer who does a good bit of appellate work, and the next time I saw her, she gushed, "You write really well! I think you missed your calling." I told her that a lot of people apparently share that view, because an increasing number of judges, lawyers, and clients are telling me that perhaps I would have been better advised to choose something besides law as a career.
Anyway, on to what has become the tradition here on Friday, a tour of the blogosphere to find something that catches my fancy, and may catch yours.
No quarter asked, none given. The vast majority of depositions I've been involved in have been relatively peaceful affairs. Oh, sure, every now and then I have one like last week, when the other lawyer either wanted to impress his client or get an audition for the next version of Perry Mason. But for the most part, lawyers are professionals, and act professionally during a deposition.
For the most part. Then again, there are exceptions, such as a deposition in a medical malpractice case which prompted the plaintiff's lawyer to sue the defense attorney, arguing that the latter had caused "grievous emotional distress" to his client. According to this story, the case involved the death of the plaintiff couple's baby, and in the deposition the doctor's lawyer
asked the father what "he thought might have happened to the baby, whether he felt the couple's baby nurse or nanny had committed negligent homicide and whether his wife had been involved in the death."
The wife, who was present at the questioning, became pretty much of a basket case shortly thereafter. The latest update on the suit over the deposition comes from Overlawyered: the judge tossed the suit, and even sanctioned the plaintiff's lawyer for filing a frivolous action, thereby striking a blow for a lawyer to remain free to be as big a jerk as he needs to be.
Reefer madness. I wish my mutual funds had a quarter like this: Marijuana seizures in Algeria for the first three months of the year are up 592% from the same period in 2007, says the Algerian police. Which will be good news in London; according to the Drug War Chronicle, the newspapers in that city are rife with stories about the effects of a "skunk" marijuana.
This apparently is not your father's marijuana (or, if you're of my generation, your college roommate's). Typical of the testimony describing the differences is that of "Gerard," the nom de plume of the author of this piece in the London Times. Gerard, described as "a former banker who is now self-employed in his own design business" (and how's that for a career path), is no stranger to the evil weed, consuming around "six joints of regular cannabis every week," but he draws the line at "skunk," advising us that "just three drags on a skunk joint will induce paranoia on a massive scale."
There's a certain irony in discussing "paranoia on a massive scale" in the context of marijuana laws, as this 1950's drug education video might attest:
See you next week.
In 1998, Kelli Garrett was convicted of aggravated robbery and kidnapping, with various firearms specifications. The judge gave her 39 years in prison. She caught a break, though; her sentence was eventually vacated because of Foster, and back she went to be resentenced.
Her lawyer was well-prepared for it. Garrett was 19 at the time of the crime, and she'd put the intervening nine years in prison to good use, completing several academic courses and getting treatment for her alcoholism. She also took full responsibility for her actions and expressed remorse. The state was unmoved; it argued that "retaining the present sentence would be the appropriate disposition of this case."
So instead of giving her 39 years, the judge gave her 53.
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