June 2008 Archives
It's Supreme Court week here at The Briefcase. Tomorrow I'll talk about the one decision left over from last week, Giles v. California, which presented a Crawford question. On Wednesday I'll have a recap of some of the questions facing defense attorneys handling gun charges in the aftermath of Heller. And on Thursday I'll give a brief rundown of some of the other major decisions of the Court's just-concluded term.
One other case deserves mention: in Exxon v. Baker, the Court reduced the punitive damages in the Exxon Valdez spill from $2.5 billion to just a bit over $500 million, about the same as the compensatory damages in the case. The Court suggested that a 1-1 ratio of compensatory to puntive damages was appropriate in admiralty cases, and there's some suggestion in Justice Souter's opinion for the Court that a similar ratio may be applied in all cases. The Court's jurisprudence on the due process aspect of punitive damages is all over the place, and they'll get another shot at it when the $79.5 million award against Phillip Morris in an Oregon smoker's case comes before Court for the third time next year.
The Exxon case came down the same day that the Court struck down Louisiana's law imposing capital punishment for child rape, leading some to note that the Court was imposing restrictions on the jury's ability to punish child rapists and large corporations. Not that anyone's drawing an analogy between child rapists and large corporations...
The Ohio Supreme Court, perhaps in deference to the focus on Washington, handed down no decisions whatsoever last week, so let's get right to the courts of appeals, including a boatload of them from the 8th District...
First there's this story:
The Manhattan district attorney, Robert M. Morgenthau, had a problem. The murder convictions of two men in one of his office's big cases -- the 1990 shooting of a bouncer outside the Palladium nightclub -- had been called into question by a stream of new evidence.
So the office decided on a re-examination, led by a 21-year veteran assistant, Daniel L. Bibb.
Mr. Bibb spent nearly two years reinvestigating the killing and reported back: He believed that the two imprisoned men were not guilty, and that their convictions should be dropped. Yet top officials told him, he said, to go into a court hearing and defend the case anyway. He did, and in 2005 he lost.
But in a recent interview, Mr. Bibb made a startling admission: He threw the case. Unwilling to do what his bosses ordered, he said, he deliberately helped the other side win.
He tracked down hard-to-find or reluctant witnesses who pointed to other suspects and prepared them to testify for the defense. He talked strategy with defense lawyers. And when they veered from his coaching, he cornered them in the hallway and corrected them.
"I did the best I could," he said. "To lose."
Now, I might surprise some people here, but I think what the prosecutor did was wrong, both morally and ethically. If he felt that the defendants were innocent, he should have refused to take the case, resigning if necessary, making a public issue of it if he felt like it. But to intentionally throw the case, to say nothing of secretly working with the other side, was wrong, and was an act of moral cowardice.
But then again, there's this story:
It's been just about a year since Caribou County Prosecutor Criss James was charged with dismissing charges in exchange for money. Thursday, James pled guilty to an agreement made between the State and Defense.
The State reduced the charged from seven felony counts to one misdemeanor of violation of public office for personal gain.
The State said there was indisputable evidence against him.
"Checks went from Criss James' office to his hands to his personal account," said Justin Whatcott, Deputy Attorney General.
Judge Bush sentenced James to 90 days in county jail, a sentence which will be suspended and two years probation unsupervised along with 150 hours of community service.
Criss James will continue serving as Prosecuting Attorney until his term finishes in January.
And the guy gets to keep his job!
... the Court taketh away. I was going to do a post on the Supreme Court's Heller gun rights decision tomorrow, but I'll do a quick post on it today, so you'll get two posts for the price of one; the one on Kennedy v. Louisiana, the child rape case, is right below this. (Remember, our motto here at The Briefcase: we read the decisions so you don't have to.)
Justice Scalia's majority opinion in District of Columbia v. Heller is 64 pages long. The first 52 could be entitled, "Everything You Ever Wanted to Know about the History of Firearms Regulation, With the Possible Exception of What James Madison Had for Breakfast the Day They Debated the Second Amendment in Congress." Hell, for all I know, what Madison had for breakfast could be in there, too; I started to doze off when I got to the part about Lord Richmond's comments during a debate in the English House of Lords, whichaccording to Scalia, is chronicled in 49 The London Magazine or Gentleman's Monthly Intelligencer 467 (1780). No, I am not making that up. (Note to self: check to see whether my Lexis plan includes The London Magazine or Gentleman's Monthly Intelligencer. I'm guessing not.) The last 9 pages of the opinion could be entitled, "Why I'm Right and Those Guys in the Minority are So Wrong."
The money quotes, though, come on pages 53 and 54:
nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.
We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those "in common use at the time." We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of dangerous and unusual weapons.
In other words, anything short of an outright ban of guns in the home, or a law which renders the ability to use the weapon for self-defense impossible (like DC's requirement that the gun be "rendered inoperable") is permissible. Even an assault weapons ban would not run afoul of the 2nd Amendment. Nor would laws regulating the carrying of guns outside the home be a problem, although the decision is a little less clear on this point; it refers to court decisions which struck down laws prohibiting the open carrying of a gun (i.e., not concealed).
When I'd blogged about the case earlier, I'd suggested that the Court would rule in favor of the individual right theory, but that the devil would be in the details:
Who gets to possess guns? What "arms" are covered? What regulations can be imposed on carrying them? What test is used in determining that: rational basis? Compelling interest? Something in between?
Turns out I was half right. The decision came in as predicted (although by a narrower 5-4 margin than I'd thought it would be), but instead of setting forth some analysis for determination of what regulatory schemes would be permissible, punting that question down the road, or kicking the case back to the DC court for consideration of that issue, the Supreme Court essentially resolved them: just about every gun regulation in the country, other than Washington's, arguably passes constitutional muster.
It's somewhat understandable that 4th Amendment jurisprudence would be, in the words of the late Chief Justice Rehnquist, "something other than a seamless web." A simple glance at the Amendment reveals a multitude of terms which might cause mischief: what is "unreasonable"? What does "probable cause" mean? How particular does a description in a warrant have to be? What constitutes a "search"? A "seizure"?
By comparison, the 8th Amendment seems a marvel of simplicity: all it does is prohibit excessive bail and the infliction of "cruel and unusual punishments." Any thoughts that the latter four words could easily produce a consensus as to their meaning should have been dissipated by the Court's decision in April in Baze v. Rees, where the Court was called upon to consider the constitutionality of the three-drug cocktail used for lethal injections in death penalty cases. The result was seven separate opinions, none of which garnered the support of more than three justices.
The problem goes back well before that. The Court's views on the application of the 8th Amendment to non-capital punishments has always been a mess; one can examine the decisions on excessive sentences, like those on California's three-strikes law, and experience great difficulty discerning any guiding principles from which future cases might be resolved. Thus, it wasn't much of a surprise when the Court last term declined certiorari last term in a case involving a 200-year sentence for a first offender convicted of possessing child pornography, a crime which would have netted him a five-year sentence under the Federal guidelines; no need, or desire, to wade into that thicket again.
The Court's 8th Amendment approach to capital sentencing has fared slightly better, at least in terms of coherent results. The Court has clearly adopted the "evolving standards of decency" test in determining whether the imposition of the death penalty on some particular offender (juveniles, the mentally retarded) or some particular offense (rape) is appropriate. Yesterday, in Kennedy v. Louisiana the Court by a 5-4 vote decided that the crime of child rape fell short of that line.
In fact, perhaps the major accomplishment of Kennedy is to draw that line very brightly:
our holding is that a death sentence for one who raped but did not kill a child, and who did not intend to assist another in killing the child, is unconstitutional under the Eighth and Fourteenth Amendments.
Given the brutal nature of child rape -- and the facts in this case were simply horrific -- if the Court isn't willing to impose the death penalty for this crime, it's difficult to imagine it imposing that penalty for any crime that doesn't involve the death of a victim.
Kennedy's definitive result certainly does not render it immune from criticism. Part IV-B of Justice Kennedy's opinion (joined in by Stephens, Breyer, Ginsburg, and Souter) is spent advancing reasons why imposing the death penalty for child rape isn't a good idea, at one point arguing that "it is not at all evident that the child rape victim's hurt is lessened if the law permits the death of the perpetrator":
Society’s desire to inflict the death penalty for child rape by enlisting the child victim to assist it over the course of years in asking for capital punishment forces a moral choice on the child, who is not of mature age to make that choice.
As Justice Alito cogently argues in his dissent, that's a policy choice for the legislature, not the Court, to make.
One of the other problems of Kennedy is that it doesn't do much to clarify some of the questions left over from previous forays into the interplay between capital punishment and the 8th Amendment. When it struck down the down the imposition of the death penalty on the mentally retarded in Atkins v. Virginia, and on juveniles in Roper v. Simmons, the Court had looked to a number of sources to determine whether the "evolving standards of decency" showed a rejection of capital punishment as a penalty in those cases. The list of indicators was fairly broad -- the acts of state legislatures, public opinion, even foreign law -- but there was so little clarity in exposition of how those factors could be quantified as objective indicators that the net result was simply to create a Rorschach test for the justices, in which they could sift the evidence and discern whatever they needed to reach the result they wanted. In both Atkins and Roper, for example, the majority found a consensus favoring rejection by virtue of the fact that 30 states barred the death penalty for the mentally retarded and for juveniles. Actually, that wasn't quite accurate: 12 states didn't have the death penalty at all, which meant that a majority of the states which did have the penalty allowed it for either the mentally retarded or juveniles. In the case of the mentally retarded, the majority could at least argue that a consensus was emerging: 19 states had outlawed that penalty for the mentally retarded since the Court had last considered the issue 12 years earlier. There was no such emerging consensus with regard to the penalty for juveniles; only a couple of states had switched positions.
And Kennedy poses an interesting twist on that issue: in recent years, a number of states have moved to adopt the death penalty for child rape. What happens if there's an "emerging consensus" the other way? As Benjamin Wittes put it in a recent article in New Republic (subscription required):
Is the Eighth Amendment a one-way ratchet--a device that can remove punishments from the policy table but which never puts them back on it--or is there some mechanism by which the court can acknowledge that societal mores sometimes evolve in a more punitive direction?
These questions are interesting, but given the definitive conclusion in Kennedy, seem to be pretty much academic at this point.
The Supreme Court came down with three fairly significant decisions today: in Kennedy v. Louisiana, they struck down the Louisiana statute making child rape subject to the death penalty. In Giles v. California, they held that a defendant doesn't forfeit his right to confrontation under Crawford by wrongdoing against the witness (in this case, the wrongdoing was fairly severe: he killed her) unless his acts were intended to keep the witness from testifying. And in Exxon v. Baker, the Supreme Court held that Exxon couldn't be held liable for more than $500 million in punitive damages, the amount compensatory damages that had previously been awarded in the case.
I'll have a post on Kennedy tomorrow, and ones on Exxon and Giles next week. Tomorrow will see the release of the opinion in the big gun rights case, so I'll have an update when that comes out, and a discussion of that opinion in the next week or so as well.
Back in February, I blogged about the US Supreme Court's decision in Virginia v. Moore. (Here's the post.) Moore had been arrested for driving under suspension, and a search of the car turned up drugs. One problem: driving under suspension wasn't an arrestable offense under Virginia law, so the court tossed the evidence. The Supreme Court reversed, though, saying that how Virginia classified the offense was immaterial; under the 4th Amendment, a person could be arrested for any offense so long as there was probable cause to believe he'd committed it.
I'd said at the time that the impact of Moore on Ohio was somewhat muddled, because our Supreme Court has held that in some cases that Ohio's constitution gives added protection over and above what the 4th Amendment grants. There's a case, for example, which holds that arresting someone for a minor misdemeanor isn't simply prohibited by state law, it's a violation of Ohio's constitution, and triggers the application of the exclusionary rule. Subsequent decisions have created some doubt as to whether the court would still follow that rule today.
Well, we have our first decision on Moore's impact on Ohio, and the results aren't pretty.
Lots of news on the gay rights front. Following the decision by the California Supreme Court back in May that gays had a fundamental right to marry, they've been doing just that. Of course, California being the home of ballot initiatives, there's one in November which would overturn the decision. Which may be why gay couples are asking that, in lieu of gifts, well-wishers make political donations to the anti-initiative cause.
That's not likely to happen here.
The US Supreme Court released seven decisions last week, the most significant, at least for the people who read this blog, being Indiana v. Edwards. The defendant in that case suffered from schizophrenia, and had no fewer than three competency hearings. After finally being declared competent to stand trial, he demanded to act as his own attorney. The trial judge denied the motion, but the Indiana appellate courts overruled that, saying that competent to stand trial meant competent to serve as one's own attorney. Not so, say the Supremes.
The Robed Seven down in Columbus were busy, too. In addition to affirming a death penalty for one of the inmates in the 1993 Lucasville riot, the other criminal case of note was State v. Gardner, which I discussed on Thursday.
There were a number of civil decisions of note, though, too. In Paterek v. Peterson & Ibold, the court held that a legal malpractice judgment was limited to the amount that could've been collected. The lawyers had failed to refile a dismissed complaint in an injury case, and the jury determined that the plaintiff's injuries were worth $382,000. The defendant, though, was uncollectible beyond his $100,000 insurance policy limits, so that's what the court decided the plaintiff should have been awarded in the malpractice case. And in Howard v. Miami Twp. Fire Div., the court held that, in the context of sovereign immunity, ice in a roadway didn't constitute an "obstruction" for which a municipality was liable. (I blogged about the oral argument in the case here, which gives you a better idea of the facts and the issues.)
Now -- finally -- on to the courts of appeals...
Bad boys, what you gonna do? Not a good past few weeks for the six percent of the American public which still holds lawyers in high regard. There was this:
A closely watched obscenity trial in Los Angeles federal court was suspended Wednesday after the judge acknowledged maintaining his own publicly accessible website featuring sexually explicit photos and videos.
Then, courtesy of Above the Law, we find that another California judge (state judge, this time) was admonished for his conduct of a personal injury trial, in which he did things like holding up a sign saying "OVERRULED" when the plaintiff's attorney made an objection, and allowed the defense counsel to sing the theme song from the Twilight Zone while cross-examining the plaintiff about her claim of emotional stress.
The topper, though, is the story of Adam Reposa, a Texas lawyer who was recently sentenced to 90 days for contempt of court; the judge
found Reposa guilty of contempt for making a gesture simulating masturbation while standing before County Court-at-Law Judge Jan Breland. Breland testified that during a pretrial hearing March 11, Reposa rolled his eyes and looked at her while making the gesture.
Reposa's defense? He was actually making the gesture to the prosecutor, not the judge.
Will sue for food. Of course, in addition to idiot lawyers, you have idiot lawsuits. I've blogged before about what I regard as one of the major accomplishments of the legal profession over the last forty years: convincing a majority of the public that if something bad happens (a) it's somebody else's fault, and (b) the afflicted person should be compensated for it.
Actually, though, there's been an increasing trend toward lawsuits that don't seek monetary compensation under some far-fetched theory, but instead are directed toward vindicating some imagined moral principle, under an equally far-fetched theory. For example, some judges have a policy of prohibiting certain terms, like "rape" or "victim," during trials, on the theory that that's the ultimate issue for the jury to decide. There's certainly for legitimate debate on that subject, but courtesy of Appellate Law & Practice comes the story of a one such case, where the judge told the witness she could only describe what allegedly happened to her, and not tell the jury she was "raped." Her response: to send off an angry letter to the editor? To organize a rally at the courthouse to protest the ruling? No: she sued the judge in Federal court, on the grounds that the order violated her First Amendment rights.
And then we have the story of Darthmouth College English Instructor Priya Venkatesen, who found her students unreceptive to some of her literary theories. "My students were very bully-ish, very aggressive, and very disrespectful. They’d argue with your ideas." (In the immortal words of Marlon Brando in Apocalypse Now, "the horror... the horror...") There was worse:
The snapping point came while Ms. Venkatesan was lecturing on "ecofeminism," which holds, in part, that scientific advancements benefit the patriarchy but leave women out. One student took issue, and reasonably so – actually, empirically so. But "these weren't thoughtful statements," Ms. Venkatesan protests. "They were irrational." The class thought otherwise. Following what she calls the student's "diatribe," several of his classmates applauded.
Ms. Venkatesan informed her pupils that their behavior was "fascist demagoguery." Then, after consulting a physician about "intellectual distress," she cancelled classes for a week.
She then sent each student an email announcing she was contemplating filing suit against them for creating a "hostile work environment."
Then again, idiot lawsuits, and even more idiotic court decisions, are no longer confined within our borders. Here's a story out of Canada in which a Quebec judge... Oh, hell, I can't even paraphrase this:
First, the father banned his 12-year-old daughter from going online after she posted photos of herself on a dating site. Then she allegedly had a row with her stepmother, so the father said his girl couldn't go on a school trip.
The girl took the matter to the court - and won what lawyers say was an unprecedented judgment.
Madam Justice Suzanne Tessier of the Quebec Superior Court ruled on Friday that the father couldn't discipline his daughter by barring her from the school trip.
Which is why one of my all-time favorite quotes is by the Roman playwright Juvenal: "It is difficult not to write satire."
The defendant goes to a house, gets into an argument with the homeowner, breaks down the door, then assaults the homeowner, points a gun at him, and threatens to kill him. Those are the (substantially) stripped down facts in State v. Gardner, decided yesterday by the Supreme Court.
Here's the problem it addresses: to convict of aggravated burglary, the jury had to find that the defendant entered the house with the intent to commit some criminal offense. Since the judge gave the jury no instructions on what that "some criminal offense" was in this case, the jury was left to figure that out on its own. A guilty verdict could have resulted from four jurors concluding that the defendant had committed an assault (the beating), four others concluding that he'd committed a felonious assault (pointing the gun), and four others concluding that he'd committed menacing (the threat). What happened to the requirement that a jury verdict be unanimous?
That's not as big a problem as it might appear. As I pointed out when I previewed Gardner after the oral argument in January, the aggravated burglary statute also requires that the defendant enter the premises by "force, stealth, or deception," and no court has ever held that all jurors must agree on which of those three the defendant used. It certainly wasn't a problem for the Supreme Court, which reversed the 2nd District and reinstated the defendant's conviction. For a variety of reasons, though, the decision provides less guidance for attorneys and the lower courts than it otherwise might have.
One of the reasons for that is that there isn't a majority opinion: the court split 3-1-3 on the case, with Judge O'Donnell concurring in the judgment. Another reason is that there'd been no objection to the failure of the trial court to amplify its instructions on what offenses the defendant was actually accused of committing. Reviewing the question on a plain error analysis went a long way toward the ultimate result, as might be expected.
On top of that, both the journey and the destination in Gardner aren't as clear as one might have hoped. The opinion begins by drawing a distinction between elements and means: while the jury has to conclude that each element of the crime has been proven beyond a reasonable doubt, it doesn't have to necessarily agree on the means by which that element was committed.
There's ample precedent to support that, in Ohio, on the Federal level, and in many other jurisdictions, but the primary reliance was on Schad v. Arizona, a 1991 case in which the Supreme Court dealt with an Arizona statute which defined first-degree murder as a crime that could be committed either with premeditation or during the perpetration of certain other offenses. The Court concluded that although the statute posed the possibility that a defendant could be convicted of aggravated murder, even though the juror disagreed as to the exact means, this didn't pose a due process problem.
Had the court stopped there, it would have at least laid down a rule that had the virtue of precision. It didn't, though:
We do agree, however, that the state must prove the defendant's intent to commit a crime - "any criminal offense" - beyond a reasonable doubt. The breadth of the phrase "any criminal offense" is such that in some cases, it may invite a fatally "patchwork" verdict based on conceptually distinct groupings of crimes or on multiple acts. We believe that in such cases, due process requires that the jurors must be instructed as to the specific criminal act(s) that the defendant intended to commit inside the premises.
Then, having spent 22 pages explaining why judges didn't have to charge on the different criminal offenses that might underly a burglary prosecution, the court pivots 180 degrees:
We think that it is preferable for the trial judge to instruct the jury in all aggravated-burglary cases as to which criminal offense the defendant is alleged to have intended to commit once inside the premises and the elements of that offense. [My emphasis.]
So the judge should instruct the jury on not only the underlying offenses, but the elements of those offenses, right? Well, no;
We do not require this instruction in every case. Prudence may strongly suggest such a precaution, but we are not persuaded that it is appropriate in all ircumstances.
So when is it appropriate? Well, that's up to the trial judge.
My philosophy is that the major function of an appellate court is to lay down clear rules of law for the lower courts to follow. That can't always be done: a definitive statement of law which leaves no flexibility is no better than an ironclad sentencing provision which leaves no room for discretion. But if the appellate court does allow flexibility in the imposition of the rule it decrees, it should at least provide some guideposts for the exercise of that flexibility. Gardner's real failing is that it doesn't: it doesn't give a trial judge any clear idea of when he should charge the jury on the offenses that might constitute an aggravated burglary and when he shouldn't. Given this, and given the vote breakdown on the opinion, it's clear that Gardner isn't the last word on this subject.
"Our procedure has been always haunted by the ghost of the innocent man convicted."
That observation was made by Judge Learned Hand in a case back in 1923. Those of us in the criminal justice system keep that ghost at bay by reminding ourselves that the vast majority of accused criminals plead guilty, and that with all those constitutional protections, and the greater precision of forensic science technologies... Well, yes, innocent people are convicted from time to time, but it can't be very many.
Maybe, and maybe not. A month ago, I wrote a post about 174 people who'd been imprisoned and had their convictions overturned when DNA evidence subsequently exonerated them. I mentioned then that mistaken eyewitness identification was the major factor in almost 75% of those wrongful convictions.
Now, 174 cases isn't a lot -- we have over 2,000,000 people in prison right now -- but there are an awful lot of cases where DNA evidence plays no part, despite what people who watch CSI might think. How many cases have you had which were dependent solely on eyewitness testimony? Gary Graham was executed in Texas back in 2000 based solely on the testimony of a witness who'd seen him for a few seconds from 40 feet away; prior to picking him out of a lineup, she'd been shown a picture of him alone.
I mentioned a month ago that while reforms of identification procedures were taking place elsewhere (even the Dallas County Prosecutor -- Dallas -- was instituting them), the pace of reform in Ohio ranged from glacial to non-existent. I said at the time that the defense bar wasn't even pushing any of this, and that this had to change.
Well, I'm going to do my small part for change. Most of the people who read this blog are criminal attorneys (though not all, as I learned last week). So, for those of you who do practice criminal law, some suggestions on what to do with the case that rests on identification:
First, become conversant with the proposed reforms in police procedures. The Wisconsin Attorney General published a policy manual requiring certain procedures be followed, and the manual contains an excellent summary of the science behind the requirements. At the least, it'll give you some ideas for cross-examination and voir dire.
On that subject, spend some time figuring out how you're going to attack the identification, from pretrial on. There's some excellent stuff out there on that, like this article, which gives some tips on educating the jury about the identification process and its pitfalls.
While you're educating the jury, don't forget educate the judge. You're doing that for a couple of reasons. First, you're likely to file a motion to suppress the pretrial identification, and secondly, you'll want to ask for jury instructions on the subject. Filing a motion with a bit of heft to it -- making the judge aware of the recent research and case law on the problems of misidentification -- goes a long way toward that. This amicus brief by the Center on Wrongful Convictions contains just about everything you'd want on those subjects. You don't have to use the whole thing (no duh), but check because it might contain stuff that's especially helpful for you. For example, did you know that there's substantial research to show that the presence of a weapon during the crime significantly reduces the witness' ability to make a correct identification? It's called "weapon focus," and there's even case law indicating that expert testimony on the subject is proper.
As for the motion to suppress, one case you'll want to include is the 8th District's decision in State v. Williams, which I discussed in detail here. It's one of the very few reversals of a trial court's denial of a motion to suppress an ID, and contains an excellent analysis of the factors a judge should weigh.
in the event that you've got a client with money to spend, you might want to have him cough up some for expert testimony, and there are a number of resources available for that. Keep in mind that, at least according to this study, if the prosecution gets their own expert, it'll pretty much cancel out yours. Also keep in mind that while the use of expert testimony on eyewitness identification has been sanctioned since 1985 in Ohio, the expert can only testify as to problems with eyewitness identification in general, rather than the problems with a particular witness.
And those jury instructions? You should of course ask for the Telfaire instruction. And yes, I know, in Ohio the question of whether to give the instruction is "a matter committed to the sound discretion of the trial court," as is just about everything else anymore. But if you've done a good job educating the judge, you're likely to have him exercise discretion in your favor, and if he doesn't and the right kind of case, you might have laid sufficient groundwork for getting an appellate court to agree that the discretion was abused. In fact, don't necessarily stop with a Telfaire instruction. There's abundant research which shows that "cross-racial" identifications are even more unreliable than ones where the suspect are of the same race as the person making the identification. Here's a case where the New Jersey Supreme Court reversed a robbery and rape conviction because the trial judge refused to give a charge on cross-racial identification.
Don't be afraid to be bold. One of the major problems here is that the legal standards for testing the reliability of identifications, particularly the key Supreme Court case of Manson v. Brathwaite, were established over thirty years ago, and the research since then has undercut much of the rationale for those standards. (For example, one of Manson's key criteria for determining reliability of the identification is the degree of confidence of the person making it; research, however, shows that's virtually irrelevant in determining the accuracy of the identification.) If you really want to be proactive, you might want to check out this law review article, which summarizes some of the problems with Manson and makes arguments for how the legal standards should evolve to what we now know about the identification process. This isn't pie-in-the-sky stuff. Several courts have moved beyond Manson; the Georgia Supreme Court, for example, has directed that jurors no longer be instructed to consider an eyewitness's confidence in evaluating the identification.
There's a lot of stuff that needs to be done here. It's getting done in other states, and there's no reason it can't be done here in Ohio.
I go out to a local municipal court for the preliminary hearing on a murder case. It's scheduled for 1:30, but it looks like several other things are scheduled for that time, too. The judge's lunch for one; she's heading out the door as I'm walking in. At 3:00, a rumor makes the rounds that she's back. The bailiff assures me we'll be starting in ten minutes.
He's only off by a factor of four. At 3:40, they call the first case: a guy charged with firing a gun in the air. It takes thirty-eight godawful minutes to try (not that I'm counting), the procedure as tedious as the verdict is predictable: guilty, and off to the slammer for 60 days.
Surely I'm next, I say; but no, now we have to hear the case of a guy who made two mistakes. The first was going through a red light, the second was the cop who flagged him down an asshole. (Surprisingly enough, the latter isn't a crime; under the First Amendment, speech can't be punished unless it constitutes "fighting words." I did a brief on the issue a few years back, and you'd be amazed at what you can say to a cop without crossing that line. My personal favorite was one where the defendant had said, "Just because you've got a fucking badge you think you can fuck with people" and "Fuck you and your gun, money talks so I'll walk." Incidentally, the defendant was a woman.) The appellate court will have to sort it all out, if it comes to that: another twenty-five minutes, another guilty finding.
So finally it gets time for my case, only three hours and twenty minutes after it was scheduled to start. The prosecutor calls me up to talk with me. The detective on the case is sitting there giving me the fish eye.
"You know your guy made a statement," the prosecutor tells me.
"Yeah. So what did he say?"
"Don't you know?" chimes in the detective. "He's your client. You talked to him, didn't you?"
"Yeah," I say sweetly, "but I wasn't holding a rubber hose when I did." I'm saddened by the fact that we aren't going to be friends.
He turns out to be the first witness. He testifies that the dead guy was killed by a gunshot, and that it was a homicide.
"Objection, he's not the coroner, he can't testify to that."
"He was at the autopsy," the prosecutor replies.
"And that makes him a pathologist? If he watches the Space Shuttle take off, does that make him an astronaut?"
So the prosecutor starts to have the detective testify to what the witnesses told him, but I object, and fortunately the judge never got the memo about hearsay being admissible at a preliminary hearing. I'm not exactly surprised the witnesses aren't there to tell us themselves what they saw. According to the brief article in the paper, the dead man had been standing on a street corner with a bunch of other guys at 2:00 AM. I don't know what they were doing, but I'll bet it wasn't collecting for UNICEF. Which is why the cops were so anxious to have my client talk to them; otherwise, all they had was the testimony of a bunch of dopers. And that's assuming they showed up at all. I would've loved to have them here -- the only real benefit of a prelim is to get a free shot at cross-examining the state's witnesses -- but if I couldn't do that I sure as hell didn't want to listen to somebody else telling me what they said.
Now the prosecutor reaches deep into his quiver for his sole remaining arrow: my client's statement. He marks the statement and shows it to the cop. When he gets to the part where he's going to tell us what the defendant said, I object. "Basis?" asks the judge.
So I tell her. I talk about the well-established evidentiary rule, derived from the common law, that a confession cannot be introduced unless and until there is some independent evidence of the commission of a crime. The corpus delicti, "the body of the crime," that's what the rule is called, I tell her. I recount the lack of evidence so far, I regale her with the wholesale violations of my client's rights that produced the reviled statement, I impress upon her the need to safeguard the defendant's liberties, hoping with the forcefulness of my presentation to cover my argument's only real weakness:
It's all complete, utter bullshit. The rule has no application in a preliminary hearing, nor does the question of the constitutional validity of the statement.
But the judge doesn't know that, or at least isn't sure. So after ten minutes of argument, she decides to take a recess to research the issue.
By this time, it's 5:30. My client tells me, "You talk pretty good." I say, "Yeah, so do you. If you'd kept your mouth shut, you'd be walking out of here right now."
Finally, the judge comes out; the prosecutor and I crowd around the bench, eagerly anticipating her ruling. Which is:
To continue the case until Monday morning. By which time the prosecutor will have had the opportunity to get a grand jury indictment, thereby making the prelim moot.
That's why I love my job. It gives me such a sense of accomplishment.
The big decision out of Washington last week, of course, was the Court's fourth smackdown of the Bush administration's policy on detainees. In Hamdi v. Rumsfeld and Rasul v. Bush back in 2004, the Court held that US citizens detained on American soil had to be given a "meaningful opportunity" to challenge their detention, and that the detainees at Guantanamo Bay were entitled to some sort of due process in American courts. Two years later, in Hamdan v. Rumsfeld, the Court threw out the military tribunals that the administration had set up, holding that the president was required to consult with Congress on that. Last week, in Boumediene v. Bush, the Court held that Congress couldn't strip the Guantanamo detainees of habeas corpus rights. SCOTUSBlog provides links to all the coverage and analysis you could want on the decision.
Nothing out of Columbus save for a couple of disciplinary decisions, so we'll move right into the court of appeals cases, although there's not a whole lot there, either...
There oughta be a law, Vol. 47. Two scourges of American law in the past several decades -- the idea that any bad result should be the subject of legislative remedy, and the unfortunate tendency to name those remedies after the victims of the bad results -- have combined to produce the Megan Meier Cyberbullying Prevention Act.
Meier was the 13-year-old who committed suicide last year after a 16-year-old boy she'd befriended on the Internet made hateful remarks to her on her MySpace page. Except, it turned out, there was no 16-year-old boy; as this article recounts, Megan's correspondent was actually "the mother of a former friend of Megan's who allegedly created a fictitious profile in order to gain Megan's trust and learn what Megan was saying about her daughter." Megan's understandably distressed parents called for "some sort of regulations out there to protect children," and into the breach leapt Reps. Linda Sanchez (D-CA) and Kenny Hulshof (R-MO) with HR 6123, which provides
Whoever transmits in interstate or foreign commerce any communication, with the intent to coerce, intimidate, harass, or cause substantial emotional distress to a person, using electronic means to support severe, repeated, and hostile behavior, shall be fined under this title or imprisoned not more than two years, or both.
"Communication" runs the gamut of the New Technology, including "email, instant messaging, blogs, websites, telephones, and text messages."
Now, we could spend some time discussing the First Amendment problems with this proposed legislation, but we really don't have to, since it's so obviously unconstitutional. We could talk about how at least this would prevent tragedies similar to what happened to Megan and others, except as far as I can tell, there were no "others"; Megan's case appears to be unique. We could talk about how lucky we are that Congress has nothing else to do than this, having solved all the other problems bedeviling the country. But it cost me $62.78 to fill up my Honda Accord the other morning, so we're not going to talk about that, either.
You don't write, you don't call... If you do want to talk about dumb laws, there's this story from China:
A draft law in Liaoning province makes it an obligation for adult children to contact or visit their parents regularly.
I wouldn't have guessed that there's a Jewish Mother lobby in the Chinese legislature.
Things I didn't know, Vol. 48. Another lawyer alerted me to RC 2921.38, which carries the alarming title, "Harassment with bodily substance." The statute provides that no one
with intent to harass, annoy, threaten, or alarm another person, shall cause or attempt to cause the other person to come into contact with blood, semen, urine, feces, or another bodily substance by throwing the bodily substance at the other person, by expelling the bodily substance upon the other person, or in any other manner.
The protected class includes only law enforcement or those in detention facilities, unless the perpetrator has the HIV virus, hepatitis, or tuberculosis, in which case everyone is covered -- no pun intended -- and it's a third degree felony instead of a fifth degree felony.
Of course, that's rather benign treatment. A month ago, an HIV-positive man was sentenced to 35 years in prison in Texas for spitting on a police officer, on the theory that his saliva was a deadly weapon, despite the Center for Disease Control and Prevention finding that no one has ever contracted AIDS from saliva.
(At which point, Walsh leads me back to the car, whispering "Forget it, Jake, it's Chinato -- er, Texas.")
Okay, no more politics, I promise. Well, after this...
If I was John McCain, I would use every last dollar in my campaign spending account to buy up all the copies of this picture and make sure that no one ever saw it again.
See you on Monday.
I've mentioned before that the 8th District is arguably the most 4th-Amendment-friendly appellate court in the state, and that view was further vindicated last week in State v. Alexander. The police had received info from that old standby, the "confidential informant," that Alexander was selling drugs out of his house. They attempted to set up numerous controlled buys over several months, but, according to the CI, Alexander had to call them off because he never had the drugs the CI told the cops he'd agreed to sell. The police also occasionally surveilled Alexander's home, but saw nothing which indicated drug activity.
Finally, the cops monitored another conversation, in which the CI and Alexander agreed on a purchase. Well, maybe it was Alexander. It turns out the cop had never spoken to Alexander, and the person on the other end of the line didn't identify himself. The cop ventured his "opinion" at the hearing that it was Alexander, but that was based solely on the word of the CI.
Nonetheless, the cops set up a stakeout for where the buy was to take place, and sure enough, Alexander pulled into a driveway near the meeting place. Without waiting for the drug deal to go down, the police immediately stopped Alexander, pulled him out of the car, and found a package of cocaine. They used that to get a search warrant for a house, where they discovered additional drugs, scales, cash, and a gun.
The trial court tossed all that out, and the court of appeals affirmed. The central issue, of course, was the legitimacy of the stop of Alexander's car. The court held that the stop wasn't permissible, because previous efforts to purchase drugs hadn't been successful, the police surveillance didn't corroborate the CI's allegations, and there was nothing other than the CI's word that the guy he arranged the drug buy with was Alexander. The court even determined that the good faith exception didn't save the search warrant, for pretty much the same reasons.
In a way, the case presents one of the more maddening aspects of Fourth Amendment Law. An advantage I have in writing about 8th District cases is that I know the judges, and I can say with confidence that a different trial court or a different appellate panel could have easily come up with a different result. Frankly, even I'm a bit on the fence as to the stop of Alexander; if the police monitor a call in which someone who allegedly drives a gold Cadillac agrees to sell an informant drugs at a particular time and place, and at that particular time and place somebody pulls up in a gold Cadillac, I think a lot of judges would conclude that a police suspicion that a drug deal would go down went beyond an "inchoate hunch."
On the other hand, this case, unlike so many others in this area, at least provides a guidepost for future police actions. If there's a lesson for the police to learn here, it's a simple one: wait until the deal goes down before making the bust.
If you skim over the 8th District's decision in State v. Fears last week, you're probably not going to find anything out of the ordinary. The defendant had been convicted of gross sexual imposition, and he appealed, claiming that the court had erred in allowing in certain evidence, the prosecutor had committed misconduct in closing argument, and the judge had improperly sentenced him to the maximum of five years.
None of that went anywhere. The case stemmed from claims that the defendant had sexually abused his daughter, and the defendant had testified on direct about how he'd worked several jobs to support his kids, in an effort to show that he was a decent father. The state cross-examined him about the number of children he had (by other women), what their birthdays were, and so forth, in an apparent attempt to show that he wasn't. The appellate court found the state's questions were proper to rebut a "pertinent trait of character offered by the accused," under Evid.R. 404. And, of course, there was the old sanctuary of harmless error, the court noting that "there was overwhelming evidence of appellant's guilt." And, of course, the sentence was within the statutory range, so that's with that, especially given the judge's finding about the defendant's "lack of remorse."
All well and good, except if you skpped over the first few paragraphs of the opinion, and didn't check the docket, you wouldn't have realized that the defendant had been tried on 31 counts of rape, 31 counts of kidnapping, and 12 counts of gross sexual imposition, all with sexually violent predator specifications.
Needless to say, I wasn't at the trial, but if a jury comes back on a 74-count indictment and says "not guilty" 73 times, while there may be a number of adjectives which describe the state's evidence, "overwhelming" isn't one of them. It doesn't seem implausible to suggest that maybe the jury didn't buy any of the state's case, but decided it had to convict the defendant of something, so it picked the least serious charge. It doesn't seem implausible to suggest that the trial court decided to penalize the defendant for the charges the jury found him not guilty on -- I'm not sure that "remorse" would be the logical reaction for someone who'd just been acquitted of 73 of 74 counts against him. It doesn't seem implausible that a court of appeals might take all this into account before deciding on the significance of any trial error.
Or it may be that Richard Fears just caught one immense break. I had to run over to court between writing this post, and I happened to run into the lawyer who'd tried the case, who's a good friend of mine. I told him that one of his cases was going to make my blog, and, as might be expected, he thanked me profusely and told me that he'd immediately hire some new associates to take on all the new business that such a mention would generate. He also told me that in addition to getting Mr. Fears off on all but one count, he'd gotten another case against the defendant -- for, as you might have surmised, gross sexual imposition and kidnapping -- dismissed for pre-indictment delay. And, for his troubles, was rewarded with the defendant filing a complaint against him with the bar association.
So perhaps justice was done, as it so often is, by happenstance rather than intent.
Looks like there'll be an uptick in the Cleveland body count.
Last July 4, Terrance Hough decided that he'd had enough of his next-door neighbors setting off fireworks. So, after grabbing the .40 caliber semiautomatic he kept on a kitchen shelf, he marched next door to confront 24-year-old Jacob Feichtner. Feichtner looked at Hough, incredulous. "What are you going to do, shoot me?"
Wrong question. Hough did, and then, as Feichtner lay on the ground, Hough stood over him and fired two more shots into him. Two of Feichtner's friends, Katherine Rosby and Bruce Anderson, were sitting with their backs to this, having mistaken the gunshots for fireworks. Hough shot each of them twice in the back. Hough then started to return to his house, but heard another woman screaming. He turned, took a draw on her, holding the gun with both hands, and fired two shots. One struck her fiance in the elbow as he pushed her out of the way, and another stuck her in the finger.
Those were the final shots in Hough's gun. He walked back into his house, leaving his last two victims wounded and Feichtner, Rosby, and Anderson dead. He had used hollow-point bullets. An ordinary one might have penetrated cleanly, but a hollow-point spreads on impact, trashing the internal organs of the victim as it moves through the body.
Oddly enough, Hough wasn't some crazed street punk. He was 36 years old, with no criminal record; in fact, he was a Cleveland firefighter. That last factor led to one of the more bizarre excuses advanced in recent years for criminal behavior: Hough's conduct, some claimed, was due at least in part to his resentment at Cleveland's residency restrictions, which require municipal employees to live within the city's boundaries.
Now, there are certainly arguments to be advanced, both pro and con, on the issue of residency restrictions. The Ohio legislature, never at a loss for things to do, chose to get into the act with the passage a couple years back of RC 9.481, prohibiting municipalities from imposing such requirements. I'd venture my opinion on the subject, but I've got a dog in this fight: I live in Westpark, one of the nicer areas of Cleveland -- and yes, I realize that's akin to saying, "one of Adam Sandler's more thought-provoking movies" -- which is also heavily populated by Cleveland policemen and firefighters seeking to satisfy those residency requirements. Abolition of the requirements might lead to "blue flight," resulting in a reduction in the value of my property to a figure more in line with what the average house in Cleveland fetches any more, which is something on the order of a top-of-the-scale toaster-oven.
So I won't get into that. I'll just note the irony that on the same day the jury decided to spare Terrance Hough from the death penalty and instead sentenced him to life imprisonment without parole, the Cuyahoga County Court of Appeals decided that RC 9.481 was an unconstitutional infringement on home rule.
By the way, if you're keeping score on this, of the appellate courts that have ruled on the issue, the 2nd District has upheld the statute, while the 3rd District, 6th District, 9th District, and now the 8th have struck it down.
If you're in the latter districts, you might want to hold off on the fireworks.
About a year and a half ago, I detailed two 8th District decisions regarding Children & Family Services and sovereign immunity. In the first case, discussed here, C&FS had been sued for leaving an abused child in custody of her mother, who shortly thereafter killed her. The second, discussed here, involved a suit against C&FS for permitting a father to sexually abuse his three-year-old daughter during a supervised visitation. In both cases, the trial court granted summary judgment to C&FS, and in both the 8th District reversed. I didn't have a lot of confidence in the appellate court's analysis in either case.
Neither did the Supreme Court, apparently, because last week it reversed both. In the first case, O'Toole v. Denihan, the court rejected the twin underpinnings of the lower court decision: that C&FS, when notified of the abuse, had a duty to notify the police, and that the child endangering statute created civil cause of action against C&FS. In the second, Rankin v. C&FS, the 8th District had held that liability arose under the "special relationship" exception to sovereign immunity. As I'd pointed out, that exception predated the passage of the current sovereign immunity statutes, and Supreme Court ruled likewise, holding that only the express exceptions to immunity under the statute are applicable. In both cases, the Court also held that the evidence was insufficient to show that the agency employees had acted recklessly.
The Court decided one other case on child abuse, Kraynak v. Youngstown Bd. of Ed., holding that the duty to report abuse under the former statute was to be determined under a subjective, not an objective, standard. The statute's since been amended to provide for an objective standard, so this case has only historical value.
On to the courts of appeals, where we finally have some 8th District cases to play with...
Outtakes from the War on Drugs. This article from Reason magazine's online edition features a walk-down-memory-lane refresher course for us boomers of the best (i.e., most absurd) anti-drug commercials of the past several decades, including chucklers like these:
• Pee-Wee Herman Says No to Crack--and Jail Time. "Everyone wants to be cool," the uber-ironic Saturday morning children's show host admits in this ad made as part of a sentencing deal after Pee-Wee's 1991 arrest for masturbating in a Florida movie theater. "But doing it with crack isn't just wrong. It could be dead wrong."
Videos and everything. Sit back and watch as the waves of nostalgia come rolling in.
What Bill of Rights? After a while, you just have to wonder. First there's this story out of Prince William County in Virginia:
Prince William County is moving to enact what legal specialists say are some of the toughest measures in the nation targeting illegal immigrants, including a provision that would direct police to check the residency status of anyone detained for breaking the law -- whether shoplifting, speeding or riding a bicycle without a helmet.
Okay, maybe I can see that. Immigration's a problem in certain areas of the country. Sure, there's a Supreme Court case from back in 1983, Kolender v. Lawson, which struck down a California law requiring a person to provide "credible and reliable identification" if he was stopped by police, but that was based on the vagueness of the law -- it didn't define what "credible and reliable identification" was, and maybe the law in Prince William is a little clearer. Still, it strikes me as a bit too akin to the "let me see your papers, please" request more commonly expected when crossing the border into Iron Curtain countries twenty-some years back.
But then I get to this:
D.C. Police Chief Cathy L. Lanier announced a military-style checkpoint yesterday to stop cars this weekend in a Northeast Washington neighborhood inundated by gun violence, saying it will help keep criminals out of the area.
Starting on Saturday, officers will check drivers' identification and ask whether they have a "legitimate purpose" to be in the Trinidad area, such as going to a doctor or church or visiting friends or relatives. If not, the drivers will be turned away.
Now, understand something. As you've probably figured out if you read my stuff with any regularity, I'm a pretty liberal guy, and on the continuum between rights and order, you'll find me fairly far over toward the "rights" side. Still, it is a continuum; there may be situations where you have to nudge the slider a little bit further toward the "order" side.
But how could anybody believe that "military-style checkpoints" in civilian areas are consistent with any concept of individual liberty, and how did a person who does believe that get to be a chief of police of a major American city?
Breaking the rules. Yeah, I know, the three rules here are (1) no politics, (2) civility, and (3) no politics, but this one was too good to pass by:
For sports fans at least, the most significant decision out of the US Supreme Court this past week might have been a case they decided not to hear.
Over the next few months, we'll find out if Chevonne Ecclestone and Todd Torok are going to become the Polly Klaas and Richard Allen Davis of Ohio.
As I discussed last week, Klaas was the little 12-year-old girl whose kidnap, rape, and murder by Davis led to the enactment of California's three strikes law back in 1994. The paths of Ecclestone and Torok tragically intersected last month in a park in Parma, Ohio. While the 52-year-old Ecclestone was walking her dog, she was assaulted by Torok, who savagely beat her, bashing her repeatedly in the head with a 15-pound rock. The police didn't find her until over an hour later. She died almost three weeks later, never having regained consciousness.
If you're looking for a new post today, this is it. I actually did two yesterday; page down, and you'll find them. The one right after this was supposed to appear on Wednesday; the weekly Case Update is right after that.
Still getting the hang of this... Anyway, a brand, new post for tomorrow, on the proposed three strikes law wending its way through the Ohio legislature.
A couple of weeks ago I mentioned in my Case Update that there were no decisions from the 8th District. Somewhat surprising, considering that they usually churn out about fifteen to twenty cases a week. (According to my BFF Lexis, there were more reported cases out of the 8th District last year than the 1st (Hamilton County, mainly Cincinnati) and the 10th (Franklin/Columbus) combined.
Our Watch on the Potomac continues: at least one Supreme Court opinion is expected tomorrow. Still on tap: the decision on the gun rights case, which I discussed here; forfeiture by wrongdoing under Crawford (here); and the FCC's "fleeting expletives" policy (here). I'll have something later in the week on anything that does come down. And sometime next month, I get to do several posts of the "Supreme Court year in review" variety. Yet another reason to choose life.
Nothing out of Columbus, outside of a tax case and three more disciplinary cases, providing the standard caveats for attorneys wishing to keep practicing law: don't try to make Internet sexual hookups with minors, especially if they're really FBI agents, don't get convicted of crimes, and don't take illegal drugs, especially if it's going to make you do things like take money without providing any services to your client.
That latter case might serve as a note of caution to appellate lawyers: one of the cited instances of misconduct was the attorney not showing up for oral argument in an appeal. Considering the widely-recognized futility of oral argument -- former Ohio Supreme Court Justice Craig Wright was once asked if he could remember an occasion where oral argument had an effect, and after reflecting for several minutes, said there was one case where a 7-0 decision became a 6-1 decision -- that's a somewhat surprising result.
On to the courts of appeals...
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