May 2008 Archives
Some light reading. If I was a bright guy, I'd probably spend some time over at the Social Science Research Network reading "An Empirical Analysis of the Confirmation Hearings of the Justices of the Rehnquist Natural Court." Then again, maybe not. The abstract of the article pretty much confirmed my suspicions: after comparing the confirmation testimony of the justices with their actual decisions, the authors conclude
Our results indicate that confirmation hearings statements about a nominee's preferred interpretive methodologies provide very little information about future judicial behavior.
Like Captain Renault, I'm shocked -- shocked -- to hear that. Sort of reminded me of Clarence Thomas' testimony during his hearings in 1991 that he had never discussed the contents of Roe v. Wade, apparently being the only person in the United States who hadn't.
It also reminded me of an article the other day about Justice John Paul Stevens, who was nominated by Gerald Ford back in calmer times, in 1975. The article noted that despite the fact that capital punishment was a critical issue for the Supreme Court -- the Court had declared it unconstitutional in 1972, and would reverse itself in 1976 -- nobody even thought to ask Stevens his opinion on the subject.
Say that three times real fast. Here's another one from SSRN that I never got around to reading: "Does the Supreme Court's Current Doctrine of Stare Decisis Require Adherence to the Supreme Court's Current Doctrine of Stare Decisis?" The abstract:
This Article asks whether a fair application of the Supreme Court's current doctrine of stare decisis to the Supreme Court's current doctrine of stare decisis would counsel in favor of adhering to current doctrine or departing from it. Professor Paulsen argues that the paradoxical answer is that current doctrine of precedent suggests that current doctrine of precedent disserves all of the doctrine's supposed policy justifications. Accordingly, the Court's current doctrine of stare decisis may and should be overruled - according to the Court's current doctrine of stare decisis.
Update. Back in December of 2006, I blogged about the drug raid on an Atlanta home:
It was the home of Kathryn Johnston, an 92-year-old so afraid of intruders that she required the neighbors who brought her groceries to leave them on the porch rather than enter the house. The police officers pried off her security door, and as they broke down the wooden door into the house, Johnston opened fire with a rusty revolver, striking three of them before they returned fire and killed her.
Things pretty much went to hell after that. A subsequent Federal investigation revealed that the police had gotten a warrant based on an allegation that a confidential informant had made a controlled buy of crack at the house earlier that day. Except, it turns out, there was no informant, and there was no controlled buy: the cops made all that up. Johnston only got off one shot; the police fired 39 times, and several officers were wounded by the fragments of their bullets. The officers handcuffed Johnston, then went around the house planting marijuana while she bled to death.
Two of the officers pled guilty to manslaughter charges, and are doing more than ten years; another officer was convicted last week of making false statements, and faces five years in prison.
Turns out that's not the half of it. The Federal prosecutors alleged that there was a "culture of misconduct" in the Atlanta Police Department, and that "police officers regularly lied to obtain search warrants and fabricated documentation of drug purchases." In fact, the lawyer for the officer convicted last week offered an interesting defense at trial: he said his client was simply following his training when he put false claims in the affidavit for the warrant.
Timing is everything. After the murder of his daughter by a parolee in 1992, California resident Mike Reynolds had been pushing the state legislature to adopt harsher laws on repeat offenders, without success. Then a year later little 12-year-old girl named Polly Klaas was kidnapped out of her California suburban home, raped, and murdered. The case garnered national publicity, especially since the perpetrator, Richard Allen Davis, turned out to have a criminal record dating back thirty years, which included numerous robberies, kidnappings, and burglaries. Suddenly legislators were falling all over themselves to demonstrate their toughness on crime.
Despite the passage of a bill that would have increased penalties on recidivists, Reynolds pushed ahead with an initiative, and in 1993 was rewarded with the passage of Proposition 184, California's "three-strikes" laws. Not the least of the oddities surrounding its adoption was the fact that Polly Klaas' father opposed it as being overly severe. One of the other oddities is that neither side's predictions about the effect of the law was borne out.
Back in January, I did a post about the oral argument in the Ohio Supreme Court that week in the case of State v. Hairston, in which the 10th District had affirmed a 134-year sentence for a defendant convicted of three home robberies. I'd predicted that the Court would have little trouble upholding the sentence, a prognostication that isn't going to make anyone forget Jean Dixon (unless you already have): given the condition of Ohio's post-Foster sentencing law, betting that a particular Draconian sentence will be sustained is about as risky as predicting that a Cincinnati Bengals player will be arrested sometime this week. And last week, the Court confirmed that, unless Hairston gets a commutation or pardon from the governor, he's going to spend the remaining fifty or sixty years of his life (or more; he's in his mid-20's) behind prison walls.
We're still on standby for US Supreme Court decisions; if any come out today, we'll have something on them later this week. Down in Columbus, the Ohio Seven affirmed a 134-year prison sentence for a home robber, but there was an interesting concurrence; we'll talk about that tomorrow. There were also no fewer than three decisions on UM/UIM coverage, here, here, and here. There was a point a year or so ago when I told myself I would someday wade into that thicket, but that day hasn't come, and to tell you the truth, it's not getting any nearer.
As for the courts of appeals, not much going on, apparently in anticipation of the holiday weekend; no opinions from the 8th District, for example. What did come down...
Reason No. 38 why I don't practice divorce law. There must have been some sweaty palms over on the 3rd floor of the Lakeside courthouse, home to the Cuyahoga County Domestic Relations Division, in the wake of the Ohio Supreme Court's decision the other day in Disciplinary Counsel v. Sargeant. Sergeant was a judge of the Sandusky County Common Pleas Court, and was publicly reprimanded by the Supreme Court for "unnecessary and unjustified delay" in ruling on six separate cases. Several divorce cases had dragged on for two years.
Well, if Sergeant was on the bench here, his nickname would be "Speedy." As chronicled by the Plain Dealer, the town's favorite fishwrap, divorce cases here can languish for as long as four years. (Actually, longer; one lawyer in my office was upset that he wasn't interviewed for the article, claiming that he has the longest unresolved case: the complaint was filed six years ago, and the final hearing was just continued for the seventh time.)
After the appearance of the newspaper article, various excuses were proffered and promises of correction made. The decision in Sergeant might provide a further prod in that direction. Meanwhile, word is that plans to officially rename the Domestic Relations Court "The Land that Time Forgot" have been put on hold.
More on sex offender residency restrictions. A study was published a couple of months back in the Journal of Criminal Justice and Behavior with the imposing title, "Does Residential Proximity Matter? A Geographic Analysis of Sex Offense Recidivism." From the abstract:
Examining the potential deterrent effects of a residency restrictions law in Minnesota, this study analyzed the offense patterns of every sex offender released from Minnesota correctional facilities between 1990 and 2002 who was reincarcerated for a new sex offense prior to 2006. Given that not one of the 224 sex offenses would have likely been prevented by residency restrictions, the findings from this study provide little support for the notion that such restrictions would significantly reduce sexual recidivism.
Forum-shopping. Overlawyered points us to an article about the "Texarkana triangle, labeled "'the third worst judicial hellhole' by the American Tort Reform Foundation for its 'plaintiff-friendly' decisions in patent infringement lawsuits." That friendliness apparently extends to other torts, too:
Within the United States, motor vehicle product liability cases consist of only 0.18 percent of all lawsuits filed since 2004. In Texas since 2004, those cases are 0.72 percent of all Texas lawsuits. So since 2004, Texas has received 28 percent of all U.S. motor vehicle product liability cases.
But what is most significant is that of those Texas cases, 61 percent are filed in the Eastern District of Texas. That means that of all the U.S. motor vehicle product liability cases, 17 percent are being filed in the Eastern District of Texas.
The two major cities in the Marshall Division - Marshall and Texarkana -- have a combined population of around 60,000.
Scheduling matters. Because of the holiday, there'll be no post here on Monday. I'm getting a new grill on Saturday (a Weber Genesis EP-310), just in time to have our biannual spare rib feast. (The other occasion is on Labor Day.) I'll be back with the Case Update on Tuesday, and on Wednesday I'll talk about one of those cases, the Supreme Court decision last week affirming a 139-year sentence for three home robberies, where the trial judge had given the defendant maximum consecutive sentences on a plea. See you then.
A win is a win is a win.
At least, that's what the appellate attorney in State v. Swann must have figured. The defendant had been convicted of felonious assault, and at trial he'd attempted to present evidence that another person had confessed to the shooting, under the "declaration against interest" exception to the hearsay rule provided by Evid.R. 804(B)(3). One problem: under that rule, a statement "tending to expose the declarant to criminal liability. . . is not admissible unless corroborating circumstances clearly indicate the truthworthiness of the statement." The trial judge found that the proffered evidence -- testimony by four witnesses who were friends of both the defendant and the declarant -- didn't satisfy the "trustworthiness" requirement, and excluded the testimony.
So everybody trudged off to the court of appeals, which, by a 2-1 vote, reversed the conviction. The dissenting judge found that the trial court properly applied 804(B)(3). One of the other judges didn't, holding that the corroborating circumstances were sufficient to show that the statement was trustworthy, and should have been admitted.
And this is where things got interesting. In 2006, the US Supreme Court decided the case of South Carolina v. Holmes, which the Court had unanimously reversed a decision excluding evidence of a third party's confession. The third judge on the 10th District's panel decided that Holmes was dispositive, and wound up writing the majority opinion saying just that.
One problem: the two cases really weren't that similar. In Holmes, the trial judge had excluded the evidence of the declaration against interest on the basis of an earlier state supreme court holding that "where there is strong forensic evidence of an appellant's guilt, proffered evidence about a third party's alleged guilt does not raise a reasonable inference as to the appellant's own innocence." The short version: if the state's got a strong case, it doesn't matter how good the corroborating evidence of the third party's confession is, it doesn't come in.
There are some similarities between Swann and Holmes, to be sure: in both situations, the trial judge excluded evidence which might have exonerated the defendant. As the Holmes court noted, that posed a potential conflict with the defendant's Sixth Amendment right to present a defense. But the main problem in Holmes was that the trial court had to analyze the state's forensic evidence in isolation, without considering the probative value of the defense's proffer of the third-party confession. As the Court noted, it would make no more sense if the state decided the prosecution couldn't offer its forensic evidence because the defense's third-party confession was so strong.
Rule 804(B)(3), on the other hand, requires the judge to look only at the proffered evidence itself, and the Holmes court was quick to indicate that it wasn't calling traditional rules on that into question; in fact, it noted that "such rules are widely accepted, and neither defendant nor his amici challenge them here."
Still, a win is a win is a... But a win for the wrong reason is an invitation for Supreme Court review, and that's exactly what happened in Swann. So last week, the defendant's appellate attorney spent a very uncomfortable fifteen minutes fielding questions about the ruling and acknowledging the inapplicability of Holmes, and implicitly admitting that she would have very much liked it if the author of the Swann opinion had never heard of Holmes.
There might have been a way to salvage something out of the majority appellate court opinion in Swann, but it would have been tough. There's a part of me that finds somewhat unsettling the idea that a judge can exclude a major portion of the defendant's case because he doesn't find it sufficiently reliable. Even more troubling is that the trial court's decision in that regard is normally reviewable only for abuse of discretion. And the prosecutor last week closed out the rebuttal portion of his closing argument by asking the Court that if it reverses and remands the case, it remind the appellate court to do just that.
I wouldn't be at all surprised if that's exactly what happens.
A number of interesting decisions out of the 8th District this past week, vaguely reminiscent of the final scene in Carrie, where Carrie's hand emerges from the grave to grab the arm of one of the survivors of the prom massacre.
Okay, so it wasn't anything like that. But there was some cleaning up of old business.
Several decisions by the US Supreme Court yesterday, although none that are probably of much interest to my legions of faithful readers. In one case, the Court upheld the right of states to exempt their own municipal bonds from taxation, while taxing those of other states. If you're going to read the decision, put on a pot of coffee: the case produced seven different opinions. There was also a decision on the Armed Career Criminal Act, which you probably want to read if you do Federal criminal stuff, and a decision on the guy who wanted to blow up the LA airport back in 2000.
The case with the most import was US v. Rodriguez. The defendant had been convicted of pandering child porn by offering to sell somebody obscene pictures of his daughter. Turns out he didn't have any -- of her, anyway. (He did have obscene pictures of other minors.) He argued that prosecuting him for trying to sell something he didn't have violated the First Amendment, and the 11th Circuit, for reasons known only to them and their god, bought into this. The Supremes didn't.
Probably the most noteworthy aspect of the case was that it upheld the Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today Act of 2003. That, of course, translates to the PROTECT Act of 2003. This, and the USA PATRIOT Act, which stands for Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (no, I'm not making that up), convince me that (a) Congress is paying someone to do nothing besides come up with this stuff, and (b) that person could probably benefit from smoking the 70 joints a day that might, just might, increase his risk of heart disease, as the study I mentioned on Friday showed. If he did, you might see a law to protect elderly medical students given the beguiling name of the Bill to Universally and Legislatively Legitimize Septuagenarian Hospital Interns Today Act of 2008.
One case that I didn't blog about when it came out was one a couple months back, Snyder v. Louisiana. It involved a Batson challenge, with the Court deciding that a prosecutor's reasons for striking a black juror in a death penalty case were insufficient to establish a race-neutral justification. It's hard to discern a specific holding from Snyder, other than that examination of Batson challenges might not require as much deference to the trial court's determinations as prior cases have held.
In fact, Snyder might be one of those rare cases where the Supreme Court accepts certiorari not because of some overarching issue of constitutional law, but simply to correct a wrong. The case involved a black man accused of slashing his estranged wife and her boyfriend, killing the latter. The prosecutor had not only used his peremptories to strike all five blacks on the jury panel, but then repeatedly told the jury that it was "another OJ Simpson case."
I had blogged about the case when it was argued in December, and said at the time:
In fact, the probable result of Snyder will be a more demanding and less deferential standard toward trial judges on these issues. As became clearer and clearer during oral argument, the trial judge in Snyder's case had adopted a stance of almost total passivity in the face of the prosecutor's racially-charged arguments, in one instance stating that he'd allow the jury to consider the Simpson analogy because the prosecutor didn't mention Simpson's or Snyder's race. That prompted Justice Souter to dryly observe, "That is not a critical mind at work, is it?"
I'm not sure what's the most disturbing part about the case: the actions of the prosecutor, the actions of the trial court, or the fact that jury selection in the case started on a Tuesday, the jury was empaneled Wednesday, the defendant was found guilty on Thursday, and the death penalty was imposed on Friday.
As I mentioned last week, it's that time of year, when from now until the third week of June the US Supreme Court will be rolling out opinions every Monday. There's still some big ones to come, including the gun rights case out of DC, whether the death penalty can be imposed for child rape, and the effect of the forfeiture doctrine on Crawford. If something important comes out on a Monday, you'll read about it here the next day.
Down in Columbus, nothing of consequence out of the Supreme Court, other than a couple of disciplinary cases (don't take money and not do the work, don't screw up things in your trust account). A savage beating inflicted upon a woman walking in the Cleveland Metroparks by a guy who'd been arrested 36 times, and had just been released from prison 10 days earlier, has renewed discussion of a "three-strikes" law for Ohio. I'm going to have a series of posts on that, beginning later this week with a discussion of California's experience with the law.
On to the courts of appeals...
And yo momma's fat, too. From the transcript of a Michigan magistrate's sentencing of a 20-year-old defendant for being a minor in possession of alcohol:
"I don't mean to be offensive, but you have two Operating While Intoxicated convictions and then you blow a .223 and you're still not 21? Here is my suggestion to you, Mr. Dickey, climb up on the roof of your house and jump off. Either that or get in a bathtub filled with hot water and slash your wrists; then you will be dead; it will be cheaper; it will be faster and in the long run it will be less painful to anybody who cares about you."
The article reporting the story notes that the magistrate had "second thoughts" about her comments. Good thing she didn't mean to be offensive, huh?
A no-class action. You hear the stories all the time about class-action lawsuits, which wind up in a settlement where the lawyers get $20 million in fees and each plaintiff gets a $25 coupon good for the next time they shop at the defendant's store. The lawyers in the recent Fen-Phen case did even better: three of them are on trial for bilking their clients out of $65 million of the $200 million settlement. Their trial down in Kentucky, according the Wall Street Journal's Law Blog, has taken an unexpected turn: while two of the lawyers are claiming they were misled by another attorney involved in the case, the third defendant is claiming that he "was hospitalized for an 'alcoholic seizure' a month after the case was settled, didn't take part in any court hearings and was too drunk at the time to be responsible."
Smoke 'em if you got 'em. With a hat tip to Drug War Rant, according to US government researchers, "heavy marijuana use can boost blood levels of a particular protein, perhaps raising a person's risk of a heart attack or stroke." Heavy marijuana use? Try the Jumbo Family Pack: "The marijuana users in the study averaged smoking 78 to 350 marijuana cigarettes per week, based on self-reported drug history, the researchers said," the Reuters story reports.
"Chronic marijuana use is not only causing people to get high, it's actually causing long-term adverse effects in patients who use too much of the drug," Cadet, whose study is in the journal Molecular Psychiatry, said in a telephone interview. "Chronic marijuana abuse is not so benign."
Well, yeah, I'm willing to accept the assertion that maybe, just maybe, smoking 50 joints of marijuana a day might not be good for you. Now, I'm not a scientist, nor do I play one on TV, and the likelihood of an article of mine appearing in the journal Molecular Psychiatry are slightly less than my chances of being America's Next Top Model, but I'm guessing that drinking 50 cups of coffee a day isn't going to get a stamp of approval from the American College of Cardiology, either.
And the discerning reader will notice that the study concluded that chronic usage would result in "perhaps raising a person's risk of a heart attack or stroke." After all, "the study did not look at whether the heavy marijuana users actually had heart disease."
Campaign News. Walt Bayes, Republican candidate for the Idaho House, has seized on what he believes to be a crucial issue: the need for separate bathrooms and showers for high school students. Not separate bathrooms and showers for boys and girls; separate bathrooms and showers for homosexuals and heterosexuals. No word yet on whether Idaho Senator Larry "I've Got a Wide Stance" Craig has signed on to Baye's crusade just yet.
See you on Monday.
A year or so ago, I had an oral argument in the 8th District on a sentencing issue, specifically, what the post-Foster standards for sentencing were. In the middle of my argument, one of the judges on the panel interjected, "Wasn't the real effect of Foster to abolish appellate review of sentences?"
Last week, in State v. Yuravak, a different panel of the 8th took a stab at the question, and answered it in the negative. The defendant had been convicted of a drug offense, and the trial court had imposed the mandatory drivers suspension, in this case deciding on the maximum period of five years. The defendant had appealed, arguing that the trial court's decision to defer imposition of that suspension until after the defendant had completed his prison time was an abuse of discretion.
Wrong, said the court: the standard isn't abuse of discretion, it's whether the sentence is contrary to law. The 10th District came to the same conclusion last week. On the other hand, you've got a raft of decisions -- including some from the 8th and 10th Districts -- that hold that abuse of discretion is indeed the standard. And you've got the 11th District's decision a month ago in State v. Hubaker, which says that abuse of discretion is the appropriate standard for most cases, but contrary to law can be used in some, and cases like State v. Nayar, the 7th District decision late last year which essentially held that a "hybrid" standard of review -- using both abuse of discretion and contrary to law -- was appropriate.
I'd parse these cases for some deeper meaning, but it all has a "how-many-angels-can-fit-on-the-head-of-a-pin" feel to it. You can call it abuse of discretion, you can call it contrary to law, you can call it Zelda, and it still boils down to the same thing: a trial judge in Ohio has unfettered power to impose a sentence, as long as it's within the statutory limits, and as long as he doesn't say something like, "I've always felt that colored people should be given longer prison sentences than white folk." On the record, anyway.
Back in 1995, when the Ohio Sentencing Commission was discussing different proposals for sentencing reform, it decided not to adopt a matrix system, similar to the Federal Sentencing Guidelines. At the time, I thought that was a good idea. I often felt that the Federal sentencing scheme would have made a great board game: you and your opponents start out with your pieces (battleship? hat? shoe?) and move around the board, picking up levels for "role in the offense" and dropping them for "acceptance of responsibility," and then you spin the wheel for criminal history level and Voila! You wind up at level 28, and off you go for 121-134 months, but that's less than anybody else, so you win...
District judges complained like crazy about how the Guidelines completely circumscribed their ability to hand out sentences which made some sense. And rightfully so. You don't want a situation where wildly disparate sentences are handed down for the same conduct, and the perception becomes that the ultimate outcome of the case is wholly dependent on what judge you draw in the arraignment room. But you don't want cookie-cutter sentences, either, where the only exercise of judicial discretion becomes whether to choose the top or the bottom of a 154-166 month sentencing range.
But I've begun to do a lot more Federal sentencing work, and you know what? After Booker, Rita, Gall, and Kimbrough, sentencing discretion has been largely restored. It's guided discretion, to be sure; the court still has to calculate the guidelines and come up with some explanation for why it deviated from them, if it chose to do so. The standard for appellate review is deferential, but not obsequious.
The result is that every week I read Federal sentencing decisions in which judges have carefully and articulately explained their reasons for choosing a particular sentence, and if they have not done so, they get reversed. The large majority of sentences are within the Guidelines range, but that's understandable: the Guidelines themselves are the result of a careful study of sentencing over the years, and they're a logical starting point for what the sentence should be. But if the defendant's is truly egregious and warrants more time, or the defendant's character and rehabilitation show that he warrants less time, the judge can do that.
The idea behind the Ohio sentencing reforms in 1995 was also "guided judicial discretion": there was a sentencing range, and all kinds of factors which judges were supposed to take into consideration in fashioning a particular sentence. The guidance provided for minimum, maximum, and consecutive sentences went out the window in Foster, and the decisions since then have eviscerated what was left. Although the seriousness and recidivism factors are still there, they're window dressing: although the judge is supposed to consider them, he doesn't have to make any findings with regard to them, and in fact there are decisions out there which say that he doesn't even have to mention them -- it will be presumed from a silent record that he did.
It's obviously too much to expect for Ohio to establish a matrix-like grid for sentencing. Frankly, it's probably too much to expect them to do anything. But if the concept of guided discretion, which was the heart of the 1995 reforms, is to be rescued, requiring more than just a ritualistic incantation that the court has considered the seriousness and recidivism factors under RC 2929.12 -- or, even worse, pretending that the court has done so when there's nothing to indicate that it has -- might be a place to start. Those kinds of findings would not fall within the Apprendi/Blakely analysis, would force the trial judges to engage in some sort of reasoning process when arriving at a sentence, and would allow for meaningful appellate review.
Hey, we can dream, can't we?
The single most frequent cause of innocent people being convicted of crimes is mistaken identification. This has been known for the better part of the past century, and it's not getting any better. The Innocence Project examined 174 cases of wrongful conviction (DNA evidence showed the defendant was innocent), and found that almost three-quarters of the convictions were based on mistaken identifications. In almost twenty percent of the cases, the defendant had been misidentified by more than one person; in one case, he was incorrectly identified by five different witnesses.
For the most part, the response of the judicial system has been to pretend this doesn't happen. Although the US Supreme Court highlighted the dangers of mistaken identification 40 years ago, and announced rules for preventing the use of unduly suggestive identifications, those rules have been folded into the "totality of the circumstances" test, with the result that cases of identifications being thrown out are about as common as Bigfoot sightings. A few years back, I got assigned to an appeal where identification was the big issue, and I diligently researched every case over the past 20 years involving claims of suggestive identification. There were 104 of them. The identifications were upheld in 103. The only case which was thrown out involved a 74-year-old woman who insisted that she'd identified the defendant in a lineup, which was called into question by the police officer's unhelpful testimony that no lineup had in fact been conducted.
Some of the problems with eyewitness identification are due to the inherent fallibility of perception. Any number of studies have demonstrated that people do not accurately recall what they see, a problem made far more profound by the fact that juries are likely to accord eyewitness testimony greater credence than virtually any other form of evidence. But a growing body of research has shown that problems also arise as a result of police procedures.
The guys over at the Eyewitness Identification Reform Blog (you're really not surprised there is such a thing, are you?) chronicle an example of one such case, that of Thomas McGowan, who was convicted of rape based upon his identification from a photo array:
The photo array from which the victim selected his photograph was a sloppy collection of black and white photos, color photos, and photocopies of photos. Not surprisingly, Mr. McGowan's photo was a color original. Further, after the witness tentatively pointed to Mr. McGowan, the investigating officer insisted that the witness make a positive ID, rather than allowing her to describe her level of certainty in her own words.
McGowan spent 23 years in prison for rape -- from age 26 to age 49 -- before DNA evidence demonstrated his innocence.
In fact, the new Dallas District Attorney, noting the frequent problems with photo arrays, is proposing a double-blind lineup procedure for the arrays: the police officer who shows the witness the pictures doesn't know which picture is the suspect's, or whether he's even included in the pictures. The use of a double-blind procedure is universally followed in all fields of research, because it eliminates any possibility of even unconscious bias; if the officer doesn't know who the suspect is, he's not going to communicate any information at all to the witness.
What struck me about this is that I've been doing this blog now for exactly two years. Although the blog is devoted to Ohio -- that's what it says up in the corner -- I've spent a fair amount of time checking out what's happening in criminal law in other jurisdictions, and there's a lot going. There's reform of sentencing laws, like remedying the crack-cocaine disparity, or getting away from the "lock-em-up" mentality that has resulted in the United States holding more prisoners than any other country in the world. There's reform of criminal procedures, like video- and audio-taping all police interrogations to ensure the integrity of confessions -- about 15% of wrongful convictions stem from "confessions" by innocent people. Discovery rules have been liberalized to reduce the possibility that exculpatory evidence might be missed. My God, the prosecutor of Dallas -- Dallas -- is concerned enough about wrongful convictions that he's instituting identification procedures which will reduce that possibility.
None of this is happening in Ohio. The only effort at resolving the crack-cocaine disparity was a proposal which would have simply elevated cocaine penalties to the same level as those for crack. Sentencing is far worse now than it was before the sentencing "reforms" of 1996. The defense bar has been trying to get fairer discovery rules for years, to no avail. Nobody's even talking about videotaping confessions or making sure that identification procedures are fairer. Even the Telfaire instruction, a proposed jury instruction which details the manner in which a jury should evaluate identification testimony, is of limited value: the Ohio courts have not done anything more with the instruction than hold that the trial court has discretion whether or not to give it.
Estimates are that as many as 10% of the people convicted at trial are actually innocent. There's all kinds of empirical research coming out now explaining how that happens, and how to prevent it. As far as Ohio is concerned, that might as well be happening on another planet. There's no discussion of sentencing reform -- more on that tomorrow -- and virtually no discussion of reforming criminal procedures. Most of that stuff isn't even on the radar. You won't find case law discussing it, you won't even find the defense bar pushing any of this stuff.
At some point in time, that's got to change.
You tell me when this started to sound like a bad idea.
Back in 2004, Kenneth Daniels was representing a criminal defendant, Erica French, in Hardin County, Kentucky. Erica, it turns out, had some information of value in another case. The prosecutor in that case, Robert Stevens, had approached her about testifying in the other case. Erica told Daniels that the conversation with Stevens had turned decidedly "personal."
This created some concerns for Daniels, and those concerns only deepened when Erica told him that Stevens had arranged to come to her house the next morning to review the defense lawyers' cross-examination in the other case, in order to "prepare her to testify."
Erica told Daniels that she was concerned that Stevens was going to make certain demands, and that if she didn't give in to those demands, it was going to queer the deal in her own case. Daniels then did two things. The first was to assure Erica that her fears weren't reasonable. This turned out to be untrue, but, in the grand scheme of things, Daniels' advice on this point was inconsequential.
That's because the second thing he did was to install video equipment in Erica's house, including a video camera set up in a vent in her bedroom. He then told her to make sure she didn't have sex with Stevens.
The next day, Erica called Daniels to report about her visit from Stevens. Turns out that she'd gotten everything on video. But that part about making sure she didn't have sex with Stevens? Well...
Daniels picked up the video from Erica, headed over to Stevens' office to have a chat, and over the next few days also contacted the Attorney General's office and the Kentucky Bar Association, and provided them a copy of the tape.
For his troubles, Daniels was indicted for video voyeurism, a felony in Kentucky and, later on, for intimidation, based on the claim that he tried to use the videotape to threaten Stevens. He wound up entering a plea and going into a five-year diversion program. A few months back, the Kentucky Supreme Court cut him a break: it had suspended him for five years, but decided that if he got out of the diversion program earlier than that, it would reduce his suspension as well. As long as it wasn't reduced below three years.
And the prosecutor? The one who'd used the power of his position to extract sex, which comes fairly close to some of the more progressive definitions of rape? He lost his job, of course, was prosecuted for misdemeanor "official misconduct," and was given a public reprimand by the Kentucky Supreme Court.
There's a moral there somewhere.
Down in DC, the Supreme Court's concluded oral arguments for the term. Between now and the third week of June, expect a raft of decisions, probably the biggest being Heller v. DC, the gun rights case.
Down in Columbus, there was another sentencing decision. The defendant in State v. Warren had committed the rape of a child in 1988, when he was 15, but wasn't prosecuted until 2004. The Supreme Court upheld a sentence of life imprisonment, ruling that there was no due process violation in imposing the mandatory sentence, and refusing to give mitigating consideration to his age at the time he committed the offense. I'll have more on sentencing later this week.
In Turner v. Ohio Bell, the plaintiff's decedent had been a passenger in a car which ran off the road and struck a utility pole. The plaintiff sued the utility company, and the 8th District had reversed a grant of summary judgment, holding that the reasonableness of the pole placement was a question for the jury. Not so, say the Supremes: if the utility company has obtained the necessary permits to install the pole, and if it doesn't interfere with the "usual and ordinary course of travel," the company's not liable. So unless they put one in the middle of the road, that's that with that.
The Court also holds that a decedent's beneficiaries aren't in privity with the decedent's attorney, and thus can't sue him for malpractice in screwing up a deed so that it increased the estate taxes.
On to the courts of appeals...
The AG Blues. With Ohio Attorney General Marc Dann rebuffing demands for resignation, Ohio's pols are contemplating impeachment as a course of action. As the Columbus Dispatch notes, legislators are going to have to read up on the process; Dann would be the first statewide Ohio elected official ever to be impeached and removed. Actually, there are two ways to removed Dann: impeachment, which under the Ohio constitution is for any "misdemeanor in office," or "through a complaint signed by at least 603,413 qualified electors that is filed and tried in court." Jonathan Adler over at the Volokh Conspiracy analyzes the constitutional provision and concludes that the term "misdemeanor" really refers to the traditional meaning of "misdeed" or "instance of misbehavior."
At any rate, Dann's going to need all the help he can get. According to another article in the Dispatch, Dann's office is the subject of no fewer than seven separate investigations.
The benefits of a college education. The story about the bust of the 75 San Diego State University students caught in a drug bust convinced me that getting into college isn't as hard as it used to be. After all, how bright do you have to be to figure that maybe it's not a good idea to rely on " mass text-messaging" as a "crucial marketing tool in the dealing operation"? You think maybe as you're sending out that message, "Attn. faithful customers, both myself and my associates will be in Vegas this coming weekend. So stock up, we will be back Sunday night," and then proceeding to "list reduced prices on cocaine sold in bulk quantities," the thought might enter your head, "Gee, I hope this message doesn't fall into the wrong hands"? What, all the billboards were taken?
We're winning. It's just a new definition of "winning." Grits for Breakfast has an interesting take on a story in the Economist about the effect of the decline in meth lab busts, which authorities credit to restrictions on the the manufacture and sale of pseudoephridine. Especially notable was the line from the article, which focused on the experience of a particular county in Washington state, "So grim was the methamphetamine experience in Pierce county that some view the rise of crack cocaine with relief." As Grits notes, "when shifting drug users TO crack cocaine has been re-defined as a public policy success, that's an interesting moment."
Ideas for your next marketing campaign. You'll thank me.
I offered the county a deal one time with my appointed criminal cases: I'd forego billing for the stuff I actually did, if they'd take the caps off and I got to charge them for all the time I spent sitting around waiting for something to happen. Sadly, they turned it down, or I'd be writing this from Hawaii or some other paradise to which I'd long ago retired.
I was reminded of that as I was sitting in court yesterday afternoon. I was waiting for my turn before the judge, but there were several sentencings ahead of me. I wouldn't have minded so much if the events ahead of me were pleas, like mine. Those generally have a finite duration: the prosecutor recites the deal, I say, yeah, that's it, the judge goes through the guy's rights, the client says he's guilty, and it's time to move on to the next case.
Not so much with sentencing; like snowflakes, they came in myriad shapes and forms. In this one, an attractive young lady lawyer felt compelled to share with the judge every detail of her client's descent into the hell of drug addiction, and halting climb therefrom, a climb, the attorney assured the court, which would be aided by the strict monitoring that community control sanctions would assure. As I listened to the lawyer regale the judge with her client's litany of woe, I sensed a feeling very much like the one I get when the woman ahead of me in the grocery line has a bunch of coupons. I found the lawyer's presentation polished and articulate, and it was all I could do to keep from going up and strangling her with my bare hands, just to get things moving.
The second sentencing was shorter, and more amusing. Another drug case -- quelle surprise -- and the defendant had been promised at the time of his plea that he'd get probation if he did some simple things, like start going to Narcotics Anonymous meetings and stay off of drugs. Alas, that was asking too much. What's more, the defendant apparently subscribed to the theory that if one must fail, one should fail spectacularly: with each answer to the judge's questions, it became clear that the defendant not only hadn't abided by the judge's instructions, but was supremely disinterested in doing so. The judge tried his best to talk him back down off the ledge, to no avail.
A little while later, I ran into the attorney who'd handled the case, and we commiserated on the extent to which our clients will do their utmost to talk themselves into prison. "The best part," the lawyer told me, "is that as he's being led away, the guy asked me to get his belongings from the back of the courtroom. So I did. Coat, keys, cigarettes... and a box of condoms."
"Looks like you're gonna have a fun afternoon," I said.
Speaking of criminal law, I've noticed that almost all of my posts lately have dealt with the subject. There's always been a pronounced tilt in that direction on this blog, but I usually have sprinkled in an occasional discussion of some aspect of civil law. Haven't done that in a while.
Which is surprising, considering I'm an expert on the subject. At least, Lexis thinks so. A couple months back, I got an email from them, saying that they were going to be offering a new feature -- "Expert Commentary" -- and they'd seen my blog and figured that I'd be perfect for the part. Five commentaries, two to four pages each, each on a case involving some aspect of civil procedure or evidence. They'd pay me three hundred dollars a pop, which, they acknowledged, was not market rate for the time it would take (then again, there's not exactly a line forming outside my door of people wanting to pay me to write these blog posts), but, they assured me, the big thing wasn't the money, it was the prestige of having people click on a particular case and seeing "Expert Commentary by Russ Bensing."
Figuring that, along with the proverbial three-fifty, would get me a cup of the Caramel Frappucino at the nearest Starbucks, I went along with it. For my first commentary, I picked Hayes v. Oakridge Home, a case on arbitration out of the 8th District. (If you've got Lexis, click on the get document feature and use the cite 2008 Ohio 787.) I put together a nice little piece explaining the law in this rapidly-developing area, little of which makes any sense, but it sure did after I got done with it. I sent it off, and the guy at Lexis -- I guess he'd be called my handler, if he worked for the DEA and I was his snitch -- sent back an email telling me it was very well written and exactly what they were looking for.
So I sat back and waited for the phone to ring off the hook with people demanding my expertise. A few weeks later, when it hadn't, I decided to check out the Hayes decision on-line and see how my work had been handled. Sure enough, there it was, just a few lines under the caption: "Russ Bensing on Hayes v. Oakridge Homes and Enforcement of Contractual Arbitration Provisions," in big bold print.
And in equally big bold print, a "($)" sign next to the "Expert Commentary" right above that. Turns out that unless you're one of those big law firms who have signed up for every database and feature that Lexis offers, to the point where they even come out and do your laundry once a week, you're not going to be able to read my words of wisdom unless you pony up $50.
In fact, I can't read my words of wisdom unless I want to shell out the money. What's worse, they edited the "teaser" -- the couple of sentences you get to read for free -- so that it doesn't make any sense.
Fifty bucks was what I made for sitting around for an hour in court yesterday afternoon for my plea. I think I'll wait 'til my expert commentaries hit video.
No, I'm not talking about the Marc "Drag Me Out Kicking and Screaming" Dann Deathwatch, where Vegas has pegged the over/under on his resignation at four days. I'm talking about what's going on at the Ohio Supreme Court, where eight cases are being argued this week. A thumbnail sketch of the big ones (links are to the court of appeals' opinion):
State v. Ferguson. The application of sexual offender registration and notification (SORN) requirements to defendants whose crimes were committed before the law went into effect has been the subject of much comment and litigation. Back in 1998 in State v. Cook, the Ohio Supreme Court held that such laws weren't ex post facto if applied retroactively, because they weren't intended to be punitive. Ferguson asks the Court to take another look at that issue, with the defendant arguing that the SORN laws are now so harsh that they have to be considered as punitive. This could have some substantial ramifications, especially in light of the passage of the Adam Walsh Act here in Ohio, which resulted in the reclassification of some 18,000 sexually oriented offenders, who were previously required to register once a year for ten years; over 80% of them saw their registration periods increase under the new law. And for many of those, their registration period had already expired.
State v. Bartholomew. Appeal by the state on the burning question of whether a trial court can order restitution to be paid to the Ohio Victims of Crime Fund for money they paid to the victim.
State v. Mays. You know all those bullshit traffic stops resulting from the cop seeing the defendant's car go ever so slightly over the line on the right-hand side of the road? Well, as the Chambers Brothers once sang, Time Has Come Today. A certified conflict case, where the question that's been certified says it all: "May a police officer who witnesses a motorist cross a right white edge line and without any further evidence of erratic driving or that the crossing was done in an unsafe manner make a constitutional stop of the motorist?"
State v. Veney. Another certified case. Criminal Rule 11(C) requires a trial court taking a plea in a felony case advise the defendant that by pleading guilty he's waiving certain rights:
the rights to jury trial, to confront witnesses against him or her, to have compulsory process for obtaining witnesses in the defendant's favor, and to require the state to prove the defendant's guilt beyond a reasonable doubt at a trial at which the defendant cannot be compelled to testify against himself or herself.
The courts have consistently held that "strict compliance" is required for advising a defendant of his constitutional rights, while only "substantial compliance" is required for the non-constitutional requirements. In Veney, the court of appeals determined that the "beyond a reasonable doubt" part was a constitutional requirement, and vacated the plea because the judge didn't advise the defendant of that.
State v. Swann. The defendant on trial for felonious assault tried to present evidence that another person had confessed to the shooting, but the trial court excluded it because it didn't meet the corroboration requirements of hearsay rule pertaining to declarations against interest. The 10th District reversed, finding that the court's ruling effectively deprived the defendant of his 6th Amendment right to present a defense. The State argues that a judge's general discretion in determininig what evidence is admissible doesn't impact the defendant's constitutional rights, but that argument is complicated by the US Supreme Court's decision a couple years back in Holmes v. South Carolina. In Holmes, as in Swann, the defendant had attempted to present evidence that another party had committed the crimes. In Holmes, as in Swann, the court had excluded the evidence. The South Carolina rule barred evidence of third-party guilty if it "merely casts a bare suspicion" on another person. That's not too much different from a rule which allows a judge to exclude evidence because he feels it wasn't sufficiently corroborated.
With the exception of Bartholomew, all of those cases are significant ones. I'm going to catch the oral arguments over the next couple days, and give you my further impressions after that.
There were a couple of decisions on consecutive sentencing last week. One, State v. Caraballo, was pretty straightforward. The defendant had pled guilty to two counts of rape and two counts of gross sexual imposition. He may or may not have had cases pending in Missouri and in Summit County as well -- the record wasn't clear -- but just to be on the safe side the judge gave him three and a half years, and ordered that that sentence be served consecutively to anything he got in Missouri or Summit County.
The 8th District nixed that, citing a number of cases, including one from the Ohio Supreme Court, holding that such "anticipatory sentencing" is impermissible because "it interferes with the discretion of the second trial judge to fashion an appropriate sentence."
The other case on consecutive sentencing last week was the Ohio Supreme Court decision in State v. Bates. Bates represented the flip side of Caraballo: in Bates, the Miami County trial court imposed a sentence consecutive to one that a Montgomery County court had already imposed. The question was "whether a trial court has the authority, generally, to order a prison sentence imposed by it to be served consecutively to a prison sentence previously imposed by another Ohio court."
That might have been problematic two and a half years ago. At that time, Ohio's sentencing laws, specifically RC 2929.41(A), contained a presumption for concurrent sentences, and consecutive sentences couldn't be imposed unless the judge made certain findings.
Of course, those findings resulted in State v. Foster, which held that judicial fact-finding was prohibited by the US Supreme Court's decision in Blakely v. Washington. The statute which required factfinding for imposition of consective sentences was held unconstitutional and excised from the statutory scheme as was RC 2929.41(A). The Price court thus had no problem concluding that
the trial court now has the discretion and inherent authority to determine whether a prison sentence within the statutory range shall run consecutively or concurrently, and we hold that the trial court may impose a prison sentence to be served consecutively to a prison sentence imposed on the same offender by another Ohio court.
If that were the only result, it would be unexceptional. The problem is not the destination, but the journey the court took to reach it. Basically, as the court viewed it, 2929.41, by creating a presumption of concurrent sentences, was in derogation of the common law rule. And what was the common law rule? The Court quoted the language from a 1963 case, Stewart v. Maxwell:
Inasmuch as making sentences for different crimes run concurrently is in the nature of a reward to the convict, * * * it follows that a positive act is required on the part of the sentencing court to cause sentences to run concurrently; and * * * if the entry is silent as to how sentences shall run, it is presumed such sentences will run consecutively.
Does that mean by throwing out 2929.41, we go back to the common law rule, and if the judge doesn't specify whether sentences are concurrent or consecutive, they're deemed to be consecutive? Let's put it this way: if I'm representing a defendant that's being sentenced for multiple crimes, I'm going to do everything I can to make sure the judge includes language that the sentences are to be served concurrently.
The only case out of DC this past week was the Court's 6-3 affirmance of Indiana's voter identification law, in Crawford v. Marion County. Scotusblog has an analysis of the case, if you're interested.
I don't usually do anything with 6th Circuit cases, although I probably should. There was a very good one last week, in US v. Blair, involving a traffic stop. The court tossed the search, and its discussion of the various aspects -- traffic violation stop v. Terry stop, length of detention, etc. -- make excellent reading, and give an absolutely essential understanding of the law in this critical area.
Down in Columbus, the Supreme Court handed down about a dozen decisions. Excluding the disciplinary cases (don't steal from your employer, and don't accept clients from a company that direct-markets estate planning services) and a few others which I wouldn't read at gunpoint, there were State v. Price and State v. Bates. Price involved whether a domestic violations order can modify an civil protection order as to questions of visitation (it can), but Bates is the biggie, not so much for what it decides -- that a judge can order a sentence served consecutively to the sentence a judge in another case handed down -- but for what it says: the presumption that sentences are concurrent is no more. I'll have more on that tomorrow.
Elsewhere in Ohio's capital, beleaguered Attorney General Marc Dann denied that he'd appointed Bluto as chief of staff of his frat hou -- er, department.
On to the courts of appeals...
And I thought being a Methodist was complicated. The wonders of the Religious Land Use and Institutionalized Persons Act, Congress' attempt back in 1997 to protect religious freedom from government interference, was on full display last week in a case out of the 7th Circuit. As Decision of the Day explains,
Plaintiff Gregory Koger was a Baptist when he entered Illinois state prison, but he went through several religious transformations while incarcerated, filing numerous requests for a special religious diet along the way. Eventually, Koger settled on Thelema, a religion founded by famed devil worshipper Aleister Crowley, whose golden rule is not "Do Unto Others . . .," but rather "Do What Thou Wilt." And Koger decided that for him, "Do What Thou Wilt" meant eating a special vegetarian diet.
The prison wasn't accomodating of his request, so Greg, being a red-blooded American, sued. Last week, the 7th Circuit reversed a grant of summary judgment to the prison.
Why yes, the war on drugs is going well. Why do you ask? Hard to tell what was more embarassing for the Pineville Police Department: the fact that an undercover buy of drugs was inadvertently broadcast to the public over a police scanner, the fact that two of the people caught by the sting were Pineville police officers, or the fact that one of them worked in the schools for the DARE program.
Maybe he'd eat better if he become a Theleman. According to Overlawyered,
413-pound Broderick Lloyd Laswell was arrested for robbing and murdering Randy Walker and setting Walker's trailer home on fire, and has been kept in an Arkansas jail cell awaiting a capital trial. Eight months later, he's down to 308 pounds, but he's not grateful for the diet, and has sued for "hot meals" and more consistent portions.
Calling all judges. I blogged yesterday about State v. Colon, the Supreme Court's decision a few weeks back, and the substantial impact it might have on the way that indictments are handled in Ohio. That hasn't escaped the attention of the prosecutors in this state. I got hold of an email from Ashtabula County Prosecutor Thomas L. Sartini, written to Judge Diane Grendell of the 11th District in response to an email she'd sent out to all Ashtabula County lawyers about Colon. Sartini waxes apocalyptic about Colon's ramifications, which are so severe that the Ohio County Prosecutor's Association held an emergency meeting in Columbus on Wednesday "to muster support for the Court's reconsideration of the case." The letter closes by noting that "any support that the 11th District could provide would be greatly appreciated."
Two things. First, there's a good chance that the prosecutors will get their wish. Colon's not a particularly compelling result, especially with regard to the determination that failure to include the mens rea requirement in an indictment is a "structural error." In fact, that runs directly contrary to the Supreme Court's decision just a few weeks earlier in State v. Wamsley, where they specifically rejected the claim that failure to include a mens rea requirement in a jury instruction was structural error.
Second thing. Why would a county prosecutor believe that an appellate court judge could, would, or should lend "support" to his efforts to get a Supreme Court case reconsidered?
I spent a fair amount of time yesterday talking about the Supreme Court's decision last week in State v. Blackburn. Then again, when do I not spend a fair amount of time talking? Today's note will be shorter, though; the subject, State v. Colon, handed down a couple of weeks back, is a good bit more straightforward. Its impact is also much more significant.
It doesn't take much more than a couple of paragraphs to describe what happened in Colon. The defendant was charged with a single count of robbery, in words virtually identical to those found in the statute:
[I]n attempting or committing a theft offense, as defined in Section 2913.01 of the Revised Code, or in fleeing immediately after the attempt or offense upon [the victim, the defendant did] inflict, attempt to inflict, or threaten to inflict physical harm on [the victim].
Major problem: nowhere does it allege a mens rea requirement. Prior case law says that when a statute doesn't provide an intent requirement, and doesn't plainly indicate a legistative desire to create a strict liability offense, a reckless intent is the minimum required. But that intent has to be alleged in the indictment: in Colon, everybody agreed that the failure of the indictment to do this made it defective.
What to do about that was the question. After all, the defendant hadn't raised the defect, either before or at trial. That normally would have required analysis under the plain error standard, but the Court decided that the omission of an intent element in the indictment (and, or course, in the instructions to the jury) was so damaging to the overall integrity of the trial that it constituted structural error. Which means that it requires reversal; there's no such thing as a "harmless" structural error.
As the three dissenters -- Lundberg Stratton, Lanzinger, and O'Donnell -- point out, that's a pretty broad reading of the term "structural error"; the dissent cites several cases that have gone the other way. There's merit to that argument. Traditionally, structural error has been limited to those situations in which the error so infects the proceedings that one can have no confidence in the integrity of the outcome; denial of the right to counsel is perhaps the clearest example.
Be that as it may, for now at least, Colon has some major ramifications. First, it casts into question a goodly number of indictments: any count that doesn't include a mens rea requirement is no good. What's more, that's not something that can be cured by amendment, at least over objection by the defendant: adding an element would certainly "change the identity of the crime," and thus would not be a permissible amendment under Rule 7(D). Finally, since structural errors can't be waived, they can theoretically be raised at any time, and since the error is one of constitutional dimensions, it can be raised by way of a petition for post-conviction relief. Normally, such petitions have to be filed within about six months of the conviction, but I'm not even going to try to predict how the Supreme Court's going to resolve the time requirement. Given all the people serving void prison sentences because they weren't properly advised of post-release controls, and all the people now serving sentences under defective indictments, it's possible that only about 20% of the Ohio prison population should actually be there.
One more comment: this was another win by the Cuyahoga County Public Defenders' Office, which has one of the best and most successful appellate divisions in the state. Public defenders as a group are paid crap, and on top of that they're treated as second-class lawyers by the public they serve and by a not inconsiderable portion of the bench and bar. Colon was a big win for the defense bar, and my hat's off to the gang over the Cuyahoga County PD's office.
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