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April 2008 Archives

Speedy Trial - Carryover prosecutions

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. HomanIn 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.

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Arrests and the 4th Amendment

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.

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Case Update

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...

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Friday Roundup

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.

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Cry me a (burning) river

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:


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.

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Road Warrior

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.

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Three from the 8th

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...

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Case Update

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...

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Friday round-up

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.

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Vindictiveness and resentencing

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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Death penalty and child rape

As I mentioned on Monday, the US Supreme Court's holding oral argument this week in Kennedy v. Louisiana, which presents the issue of the constitutionality of imposing the death penalty for child rape.  The case would seem to be dictated by precedent:  back in 1977, in Coker v. Georgia, the Court struck down a statute which imposed the death penalty for rape, holding that death was a "grossly disproportionate" punishment.  Since then, the view has predominated that capital punishment is reserved for situations involving its Biblical roots of "a life for a life."

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Rance revisited

Fernando Cabrales had plans for the 300 pounds of marijuana he was bringing into the state, but those plans went out the window when the two guys he'd hired to drive it to Cincinnati got busted, and wasted no time in rolling over on him.  His woes compounded when he was charged with three separate offenses regarding the same 300 pounds of marijuana -- possession, preparation for distribution and sale, and sale -- and upon his conviction, was sentenced for all three.

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Case Update

Nothing out of Washington this past week, but you'll want to make space on your calendar for later today, when the Supreme Court is scheduled to hear argument in a case involving the authority of Indian tribal courts.  Moving away from my typically smarmy comments for a moment, the argument in Kennedy v. Louisiana, scheduled for Wednesday, might be a bit more momentous for the people who typically read this blog:  It involves the constitutionality of imposing the death penalty for child rape. 

Speaking of the death penalty, we had a rare reversal of one here in Ohio this past week.  In State v. White, both prosecution and defense psychologists had concluded that the defendant was mentally retarded, and therefore exempt from the death penalty under State v. LottThe trial judge disregarded them based on anecdotal evidence that, among other things, the defendant could drive, cook eggs, and play "Mortal Kombat."  The 9th District affirmed, but the Supreme Court reversed, saying they should have listened to the docs.  The opinion which included the memorable phrase, "It is not clear, however, what relevance White's video-game skills have to mental retardation."

In other words, you can tell your kids that the Ohio Supreme Court has concluded that just because they're good at video games doesn't mean they're not retarded.

In other cases, the Supreme Court held in State v. Colon that the failure to include the mens rea requirement in an indictment was a "structural error," which means it can be raised on appeal even if it wasn't objected to in the lower court.  The biggie for the week, though, was State v. Cabrales, which substantially modified the Rance test for allied offenses.  I'll have a full post on that tomorrow.

On to the courts of appeals...

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Friday roundup

Make mine a double.  Last October, Michigan State University student Amanda Jax decided to celebrate her 21st birthday by going drinking.  They wound up carrying her back to her dorm, and discovered her dead the next morning; an autopsy revealed she had a blood-alcohol content of .4594. 

As anticipated, the lawsuit is forthcoming, not only against the bar which served her, but those same friends who set out to go drinking with her at the beginning of the night, and carried her home at the end of it.  Alan Milavetz, the lawyer for Jax's mother, struck the appropriate tone about how such a lawsuit will ultimately benefit society:  

"College kids aren't drinking a few glasses of beer anymore," Milavetz said.  "When you're talking about cherry bombs and other drinks, alcohol has become a recreational drug, and it's killing college kids. That's not something society should allow. People say her mother just wants money, but Jenny Haag would trade anything to have Amanda back."

What about the claims of her friends that Amanda "used to drink all the time," with one stating that he had "seen or helped put Jax to bed drunk at least 50 times," claims buttressed by the fact that Jax had a DWI in each of the two preceding years?

Milavetz said those witnesses are blaming the victim.

"You don't serve a college kid to the point they can't stand up," he said. "Especially a college kid who is out drinking legally for the first time."

The fact that the attorney found it necessary to phrase it as "drinking legally for the first time" pretty much gives the game away, don't you think?

A lawyer's lawyer.  Tom Jacobs died this past weekend.  I'd worked for and with Tom for about six years, and was partners with him for eleven more. 

Like most of us, Tom wasn't a great lawyer.  Like most of us, he had some interesting clients and cases, but there wasn't any great result that he ever obtained, any outstanding victory.  He was a little too obsessive about details; he could spend an hour and a half taking in a shoplifting case, and come away with five pages of notes.  And he didn't have a great sense of business, as far as the law was concerned.  I remember we had one corporate client, whom we charged at the rate of $100 an hour because Tom had promised them when he'd signed them up ten years earlier that that's all he'd ever charge them.  I told him I'd tried to work out a deal with the local gas station that I'd always buy gas there if they promised to always charge me the same thing, but they'd been pretty nonresponsive to the idea; unfortunately, the analogy fell on deaf ears.

But in all the time I knew Tom, he always worked hard, he always treated everyone with respect, he was a model of honesty and integrity, his client's interests were always his top priority, and he always did his best for them.  Think about that for a second.  There are a number of lawyers that I know -- lawyers who have obtained great results, outstanding victories -- that I can't say that about. 

Tom didn't teach me much law -- though probably more than I'd care to admit -- but he taught me everything about being a lawyer.  I only wish I could say that I was as good at it as he was.  He was a true professional, and as far as I'm concerned, that's as good a compliment as you can give a lawyer.

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Ivory towers; 500 Milestone

Back in March of 2001, Victor Harris got into a car chase with the cops.  After they'd pursued him for ten miles (and to give you an idea of the speed involved, this took only six minutes), one of the officers rammed Harris' car, causing him to lose control; the car ran down an embankment and overturned.

The crash left Harris a quadriplegic, so he did what any red-blooded American would do:  he sued, arguing that the ramming of his car constituted "excessive force" under the Fourth Amendment and was thus a violation of his civil rights.  The district judge tossed it on summary judgment, but the Fourth Circuit reversed, holding that there was a genuine dispute of fact as to whether the force was necessary. 

Ah, the marvels of techology!  Turns out that one of the officers had a video camera in his car, and captured the entire chase.  When everybody trundled off to the Supreme Court to argue the case, Harris' lawyer was met with a barrage of questions by virtually every justice, the upshot being that no one in his right mind could come to any other conclusion but that Harris' driving created a substantial risk of injury to every other driver, and anything done to get him off the road was necessary.  Well, no one in his right mind except for Justice Stevens, who was the only one of the Justices who dissented from the reversal of the Fourth Circuit's decision.  Justice Scalia, who headed the majority, even helpfully included a cite to the video in his opinion.  (You can find the video here; RealPlayer is required.)

Enter Professors Kahan, Hoffman, and Braman, who've prepared an article on the case for the Harvard Law Review.  (The abstract is here, and the whole article can be downloaded from that site.)  The profs explain:

We showed the video to a diverse sample of 1,350 Americans. Overall a majority agreed with the Court's resolution of the key issues, but within the sample there were sharp differences of opinion along cultural, ideological, and other lines. We attribute these divisions to the psychological disposition of individuals to resolve disputed facts in a manner supportive of their group identities.

The authors then argue that while the result of the case might be defensible,

the Court's reasoning was not. Its insistence that there was only one reasonable view of facts itself displayed a characteristic of a form of bias - cognitive illiberalism - that consists in the failure to recognize the connection between perceptions of societal risk and contested visions of the ideal society. When courts fail to take steps to counteract that bias, they needlessly invest the law with culturally partisan overtones that detract from the law's legitimacy.

I think that could be better, and more simply, put:  judges tend to have biases that do not reflect the broad cross-sections of society, because judges, by and large, do not come from the broad cross-sections of society.  Most come from the upper strata, and reflect those sentiments.  Over time, especially at the appellate level -- because that is where the law is enunciated -- the law begins to reflect those sentiments, too. 

Clarence Thomas is perhaps the only Supreme Court Justice who came from a hard-scrabble background.  For the most part, to put it delicately, his opinions don't reflect that background, but there was one glaring exception to that:  Virginia v. Black, which upheld the constitutionality of Virginia's prohibition of cross-burning.  The First Amendment problems with such a statute are obvious, and the Court had in fact struck down a similar Wisconsin law about ten years before.  But during oral argument on the case, Justice Thomas, in one of his rare forays that arena, forcefully made the point that the history of cross-burning in this country made it "unlike any symbol in our society."

It's doubtful that any of the other Justices could have made that point as forcefully as Thomas did.  That's something to keep in mind the next time the subject comes up of whether it's appropriate to have a "black justice" or a "woman justice" on the Supreme Court.  There is value in diversity, especially in the law, which in a free country depends to a large extent on the acceptance of its legitimacy by the people.  If the people begin to lose faith that the law refelcts their beliefs, the legitimacy is eventually undermined.


On another note, this is the 500th post since the first one appeared back in May of 2006.  For those of you who've found this site helpful and, hopefully, entertaining, my thanks.

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While I was gone...

...on vacation, the 8th District wasn't, and handed down several decisions of significance.  A quick summary:

First up is State v. Henderson, where the defendant's charged with murder and having a weapon under disability.  Under the law, the defendant can choose to bifurcate the case, and have the judge determine the disability charge.  In this case, the judge started the case by announcing that's what he was going to do.  The appellate court tosses it, saying that when a defendant chooses to bifurcate and have the judge decide the weapons charge, the court has to comply with the normal requirements for a jury waiver:  the waiver has to be in writing, signed by defendant, filed, made part of record, and made in open court.

Then there's State v. Aponte, another bench trial, in which the defendant was charged with receiving stolen property, and the judge found him guilty of an attempt.  The defendant argued that there was no way the judge could have found him not guilty of the completed crime, but guilty of an attempt, but the panel held that the judge wasn't required to find him not guilty of RSP before finding him guilty of the attempt to commit the crime.  The case law generally holds that conviction of a lesser offense is an implicit acquittal of the greater offense, but the court holds that an attempt is "more closely related to an offense of inferior degree."  The opinion gets funky in a major way at that point, delving into mitigating factors, abandonment, affirmative defenses, and just about everything except the rule against perpetuities.

The key case of the lot is State v. Holder, a child-molestation case in which the defendant was charged with five counts of rape and gross sexual imposition, and two counts of sexual battery.  They were "carbon-copy" or "copy-cat" indictments:  there was nothing to differentiate any of the rape counts from the other rape counts, ditto the GSI and battery counts.

I'd talked about this problem before, with regard to the 8th District's decision last fall in State v. Ogle, along with the 6th Circuit's decision in Valentine v. KontehThe upshot of those decisions is that such "copy-cat" indictments pose double jeopardy problems:  if two counts are indistinguishable, and the defendant is convicted of one and acquitted of the other, how do you tell what he was convicted of and acquitted of?  While the defendants in Ogle and Valentine made that argument on appeal, the defendant in Holder decided on a pre-emptive strike:  he filed a motion under Rule 12(C) to dismiss the indictments because they presented a double jeopardy problem.  The trial judge agreed, and dismissed all but one count of each of the three charges.  The state appealed, but the panel noted that it had never sought to amend the indictment or bill of particulars, so Holder's argument was valid.

The upshot:  if you've got a case where the prosecution alleges that your client raped somebody x number of times over several years -- which is a common feature in those cases -- and there's nothing in the indictment or the bill of particulars to distinguish one count from the other, the court's got to kick out all but one.

Last, we bring you State v. Langford, a felonious assault case featuring what is commonly known here in Cuyahoga County as a "baby's mama drama":  two women, one dating a particular gentlemen and the other having had a child with him, get into a tiff.  The victim in this case happened to have had $600 on her, which the assailant allegedly stole. 

The highlight of the case was the testimony that the perpetrator hid money in her crotch, and what happened to it after that.  Think you want to be a police officer?  Read this from the court's opinion: 

Defendant's testimony that she kept the money in her pocket at all times and that it could not have been soiled when she became incontinent was simply unbelievable given the very graphic testimony by the institutional guard who found the money and the police officer who had the task of counting the money after it had been recovered from her. 


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Searching purses and fleeing the police

Every now and then, you come across a case where the only opinion is a dissent.  That happened in the Ohio Supreme Court's decision last week in State v. Mercier.  The case was pretty cut and dried:  the police had searched the purse of an occupant of a motor vehicle, and the Court's opinion, in its entirety, states, "The judgment of the court of appeals is affirmed on the authority of Wyoming v. Houghton (1999), 526 U.S. 295."  That case, which you can read here, established a bright-line rule that if the police have probable cause to search a car, they may also search containers found in the car, even if the containers belong to a passenger, and even if the police don't have any basis for believing that the passenger committed a criminal act.

There's a key difference between Mercier and Houghton, though, which Justice Lantzinger hones into in her dissent:  in the latter case, the police came across the purse during the search; its owner was outside the car, and didn't even admit ownership of it until the police found her ID in it.  In Mercier, on the other hand, the passenger was holding the purse at the time the police officer told her to get out of the car, and also told her to leave the purse in the car.

Lantzinger makes a fairly good argument about the privacy value of a purse and that the factual differences in the two cases warrant a different result.  Given that the police in Mercier admitted they had no reason to suspect the passenger of anything, allowing them to bring the case within the Houghton rule by the simple expedient of telling her to leave her purse in the car is a bit unsettling.  Given the US Supreme Court's growing preference for "bright-line" Fourth Amendment rules, though, it's hard to say that the Ohio Supreme Court got Mercier wrong.

The same thing can't be said about its other decision last week, in State v. FairbanksA police officer had seen Fairbanks go left of center, and put on his sirens to apprehend him; Fairbanks took off, and wound up crashing his car.  He was charged with various traffic citations for this, including one for reckless operation, which he pled to and paid the fine.  A few months later, the state indicted him for failure to comply with an order of a police officer.

That offense is normally a misdemeanor, but becomes a third degree felony if the flight "caused a substantial risk of serious physical harm to persons or property."  Fairbanks argued that reckless operation, which prohibits operating "a vehicle * * * on any street or highway in willful or wanton disregard of the safety of persons or property," was a lesser-included offense of the third-degree felony variant of failure to comply, and that his plea to the former offense barred prosecution of the latter under double jeopardy.

That seems to be a pretty simple, and convincing, argument.  Driving with "wanton disregard of the safety of persons or property" is indistinguishable from driving so as to "cause a substantial risk of serious physical harm to persons or property."  Under normal lesser-included-offense analysis, that would make reckless op the lesser included of third-degree failure to comply, with the latter requiring the additional element, of course, of refusing to obey a police officer.

How the Court comes to a contrary conclusion makes for an interesting, if unconvincing, read.  In fact, the basis for the Court's conclusion isn't entirely clear:  it seems to be that the "substantial risk" language of the third-degree felony variant of failure to comply isn't an element, but merely an "enhancement" of the basic crime:

It is analogous to determining whether the offense occurred in daylight or in darkness or whether the place where it occurred was dusty or wet. It is simply a finding of the presence or absence of a condition.

Essential to the Court's finding in this regard is its determination that the "enhancement" requires no "culpable mental state"; in other words, although the state has to show that the defendant "willfully" fled the police, whether that created a risk of substantial danger to person or property is a matter of strict liability.  The Court determines that the legislature "clearly intended" such a result, and cites State v. Jordan in support of that conclusion.

If you read State v. Jordan, though, it actually runs contrary to the result in Fairbanks.  In Jordan, the the defendant had been charged with possession of a dangerous ordnance; the statute required that the defendant "knowingly possess... a dangerous ordnance," and the state argued that the "knowingly" requirement only applied to the "possession," and that whether the instrument was actually a dangerous ordnance was a matter of strict liability.  The Court rejected that interpretation, noting that while "different elements of the same offense can require different mental states," the General Assembly had specified a culpable mental state, and "nothing in the language of the statute would lead us to conclude that the General Assembly plainly indicated its intention to impose strict criminal liability in determining whether" the statute was violated.  The emphasis was the Court's, and there's nothing in the failure to comply statute which plainly indicates that the legislature intended to the "substantial risk" element to be a strict liability offense.

Lantzinger -- again -- does a nice job in her dissent (joined by Pfeiffer), all for naught, of course.  It's nice to have logic on your side, but if you don't have the votes, it doesn't matter much.

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Case Update

A reminder to be a bit careful about loss of consortium claims in this week's case of Disciplinary Counsel v. IttaItta had taken over a PI case from another lawyer in the firm, and filed suit, including  a loss of consortium claim because the notes indicated the client was married.  Somebody should have talked to the wife, or even the client; turns out that they were separated, and would subsequently divorce.  The client balked at including the wife in the settlement of the PI case, so Itta dismissed her claim with prejudice.  She found out about it, and he got a public reprimand for his troubles.

There were a couple of notable other cases out of the Ohio Supreme Court, one involving a search and seizure, the other charges on lesser included offenses.  I'll discuss both of them in more detail tomorrow.  The US Supreme Court is on spring break -- imagine what those party animals are doing down in Cancun -- but they did have a conference on Friday to consider granting cert in a number of cases, and depending on what they do, I'll have more on that, too.

On to the courts of appeals...

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Friday round-up

Got an appellate brief that's due today -- I tell you, if it weren't for the last minute, I'd never get anything done -- so we'll just skim off the cream from the stuff that's clogging up the Internet right now.

Sticks and stones will always hurt me, and calling me greedy on talk radio does the trick, too.  With a hat tip to Overlawyered, according to the Mobile, Miss. Clarion-Ledger, "Two Mississippi lawmakers took the unusual step Friday of going to the House floor to say they felt aggrieved by the way one of their colleagues discussed them on conservative talk radio."  What got their ire up was the member referring to a bill they'd recently sponsored as "the Lawyer Full Employment Act."  The bill would have required that an attorney be present at the closing of any residential mortgage that involved an escrow transaction.

The great thing about the Internet, though, is it leads you to one thing after another.  A quick perusal of the Clarion-Ledger's home page shows that there's all kinds of funky stuff going down in Mobile.  A 17-month old baby had to be taken to the hospital because, "according to witnesses, the grandfather of the infant poured a small amount of Vodka into the infant's sippy cup."  And a mistrial was declared in the case of the local police chief, a 50-year-old man accused of having sex with a 14-year-old; for the second time, a jury hung on the case.  The police chief's name was Jimbo Sullivan.  I am not making any of this up. 

Jesus, take the wheel.  From A Stitch in Haste comes this story, which surpasses by several orders of magnitude anything I've had in my Bullshit Traffic Stop of the Week:  In US v. Magana, a case out of the Western District of Texas a few weeks back, the cop had conducted a traffic stop because he believed he'd observed a defective tire.  Turns out the tire wasn't defective.  Nonetheless,

the officer detained the driver, because among other things, the driver had a religious statue on his dashboard. The officer stated that in his experience and opinion, religious symbols are used to dispel suspicion of wrongdoing and are usually indicative of drug activity.

Well, at least it was a plaintiff's verdict.  We've all heard the horror stories about auto accident cases where the defense lawyer will get up in closing argument, admit that his client is negligent, and suggest a sum that will adequately compensate the plaintiff (usually about 10% of what the plaintiff's lawyer will suggest), and the jury will still return with either a defense verdict or zero damages.  Courtesy of On Point comes the story of a Ford Bronco rollover suit, where the jury awarded the plaintiff, who was left a quadriplegic, over six million dollars in damages -- against her sister, who was driving the SUV.  The suit had been brought against Ford, of course, alleging a design defect in allowing the rollover.  Ford's lawyer was a standup guy:

Even Ford's lead attorney had said in his closing argument that if the jury found any liability, it should blame his client, not Marla Bear. "You shouldn't brand her with her sister's injuries,'' Donald H. Dawson said. "I say that even if it hurts my client."

The plaintiff termed the award "retarded."

See you on Monday.

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Acquitted conduct

Michael Hurn was in deep trouble.  He was on trial for possession with intent to distribute 150 grams of powder cocaine, and 450 grams of crack cocaine base.  As anyone who's familiar with Federal sentencing knows, the powder cocaine was the least of his worries; a conviction on that would have meant a sentence of between 27 and 33 months.  The crack cocaine, on the other hand, would result in a prison sentence of close to two decades.  So he must have been mighty relieved when the jury bought his argument that the crack cocaine belonged to other people who lived in the house the police raided, and acquitted him of that charge.

Then the probation officer prepared a report concluding that the preponderance of the evidence presented at trial showed that Hurn had possessed the crack, too.  The trial judge agreed, and imposed an 18-year sentence, which was affirmed by the 4th Circuit.  Earlier this week, the Supreme Court denied certiorari.

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Lesser included offenses

The facts in State v. Smith are pretty clear.  Smith and a friend were shoplifting, with the help of the friend's children, and when the security guard intervened and things started going south, Smith got a bit porky, knocking over a table and biting the security guard before she was finally subdued.  That got her charged with robbery, or "aggravated shoplifting" as it's known in the trade:  using force while committing or attempting to commit a theft offense.  Smith wound up with a sympathetic judge who, after a bench trial, convicted her only of felony theft.  But having caught one break, Smith tried to get another.

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International treaties, and fools for clients

According to the Canadian Coalition Against the Death Penalty, Jose Medellin, who's sitting on death row on Texas, could use a penpal.  At least, he could have back then; he was 24 when he wrote that, and he's 33 now.  As you can see, Jose is a little circumspect about exactly how he wound up being slated for execution; the way he tells it,

at the age of 9 years old I came to live with my parents in Houston.  I went to school there till the tenth grade, after that I dropped out of school and went to work for a construction company till I was 18 years old.  At that age is when I got arrested and a few months later I was sitting here on death row.

Maybe some of you, like me, don't remember landing on death row being one of the rites of passage of our youth.  Turns out that Jose's reticence to share the details of his conviction is somewhat understandable.

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