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.” (keep reading…)

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.  (keep reading…)

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. Lott.  The 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… (keep reading…)

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.

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.

…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. Konteh.  The 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. 

Eeeewwwww.

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. Fairbanks.  A 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.

A reminder to be a bit careful about loss of consortium claims in this week’s case of Disciplinary Counsel v. Itta.  Itta 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… (keep reading…)

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.

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. (keep reading…)