July 2008 Archives
For the next couple of days. I'll see you on Monday.
No, that's not the name of a character in a new Fox series this fall, it's the new fad among some judges: handing down maximum, consecutive sentences. The 8th District's decision last week's in State v. Sutton might slow that impulse.
Whatever kind of day you had yesterday, it was better than the one Jimmy Dimora and Frank Russo had. Here's a simple tip: when FBI and IRS agents show up and your office and your home with U-Hauls and start removing files, it's not a Good Thing.
Summertime, and the blogging is easy... The Washington Gang is off until October, and the Columbus Seven is apparently in cruise mode: the most notable decision out of the Ohio Supreme Court this past week was the granting of a motion to set the execution date for Gregory L. Bryant-Bey, who killed a Toledo man in 1992. Bryant-Bey's date with the gurney is in November, but he doesn't need to cancel his magazine subscriptions just yet; as this article points out, he's going to be joining a federal civil rights lawsuit over Ohio's three-drug method of execution, despite the affirmance of Kentucky's similar procedure by the US Supreme Court this past spring.
At any rate, in keeping with the more leisurely legal pace, I'm going to have a little break, too, taking time off from blogging this Thursday and Friday. On to the courts of appeals, where the work continues unabated...
No ifs, ands, or butts. As trends go, I much -- much -- preferred the miniskirt to the saggy pants look, never having developed an appreciation for male underwear, other than my own. While this would seem to be a matter for the fashion police, the real police are getting involved now, too; as this story tells us, interim Flint Police Chief David Dicks, apparently still operating under his porn name,
announced that his officers would start arresting people wearing saggy pants that expose skivvies, boxer shorts or bare bottoms.
"Some people call it a fad," Dicks told the Free Press this week while patrolling the streets of Flint. "But I believe it's a national nuisance. It is indecent and thus it is indecent exposure, which has been on the books for years."
On June 27, the chief issued a departmental memorandum telling officers: "This immoral self expression goes beyond freedom of expression."
Dicks has even established a three-level violation system, vaguely reminiscent of, and about as well thought-out as, Roe v. Wade's trimester scheme. His motives may involve more than simply ridding the city of an eyesore; as the article notes, he claims that "the style also gives police probable cause to search those wearing no-rise jeans." Not a bad day when a police officer can take out 20% of the Bill of Rights in one fell swoop.
Not-so-unique after all. Much of forensic science, at least as it's often claimed in the courtroom, is based on the idea of uniqueness: no two bullets are alike, no two fingerprints are alike, etc. Scott Henson over at Grits for Breakfast tells us that ain't necessarily so -- the claims cited above have not been scientifically proven -- and points us to an LA Times story which raises some similar questions about DNA, the gold standard of forensic evidence. Back in 2001, an Arizona state crime analyst found two felons in the FBI database which matched on 9 of the 13 locations of chromosomes normally used for identification. According to the FBI, the chances of that happening are 1 in 113 billion. The analyst found dozens more examples. The FBI claims the whole thing is meaningless, but this is a story to follow. You might also want to check out Henson's links to the claims regarding fingerprint and bullet testing.
Bullshit lawsuit of the week. When disbarred New York lawyer James Colliton was accused of sleeping with three underage teenage girls, instead of cutting a rap record, he went on the lam. Visa may be everywhere you want to be, but there's a few stores in Canada that apparently take American Express, too, and that's what Colliton used. Amex turned the information over to cops, and they used that to track him down. He's doing 19 months for the three statutory rapes, and he's just sued Amex for $4 million, claiming they violated their terms of agreement regarding disclosure to third parties by ratting him out.
Bullshit lawsuit of 1884. A hat tip to the Volokh Conspiracy for digging up the fact that in a lawsuit filed 124 years ago in Montreal, some guy named Lebeau sued some guy named Turcot. Seems that Turcot was taking the collection in church, and passed Lebeau by, with the alleged goal of insulting and humiliating him. Lebeau figured that $199 would render him whole. Don't know what the exchange rate was back then...
See you on Monday.
Just like people of our generation remember where they were the day John Kennedy was shot, and of the generation prior to that remembered where they were when Pearl Harbor was bombed, the current generations will no doubt remember where they were on September 11, 2001, and on February 1, 2004.
What's that? February 1, 2004? Yes, that was the date of the infamous Super Bowl XXXVIII halftime show, featuring Janet Jackson and Justin Timberlake, the horrible denouement of which is recounted in vivid detail in the 3rd Circuit's opinion the other day in CBS Corp. v. Federal Communications Comm.:
In one of the last decisions of this past term, the Supreme Court put the kabosh to a state law allowing the death penalty for child rapists in Louisiana v. Kennedy (discussed here). On Monday, Louisiana filed a petition with the Court for reconsideration of the case. Normally, the outcome of this would be as difficult to predict as who'll be on the cover of O, the Oprah Magazine next month. As even the petition acknowledges, the Court "almost never grants petitions for rehearing."
So why bother?
One of the things I've harped upon in the past is the lack of empirical data to guide lawyers in making strategic and tactical trial decisions. If I want to find out what Derek Jeter has hit with men in scoring position and two out over the past three years, it'll take me about twenty seconds. (He hit .345, about twenty points above his regular average.) If I want to find out a breakdown of the 2004 presidential vote in Ohio, by county, it'll take about the same time. If I want to find out how making an objection affects a jury, I'm pretty much out of luck.
Or maybe not. The Ohio Bar Association is doing a seminar on criminal advocacy in Cleveland on August 14, and I got roped into doing the hour on voir dire. One of the things I've always believed is that no area of trial work is more subject to a lawyer's intuition than voir dire; we develop ideas about who makes a good juror and who makes a bad juror based on little more than hunch leavened with experience, as this quote from Clarence Darrow shows:
An Irishman is called into the box for examination. . . You should be aware that he is emotional, kindly and sympathetic. If he is chosen as a juror, his imagination will place him in the dock; really, he is trying himself. You would be guilty of malpractice if you got rid of him, except for the strongest reasons.
If a Presbyterian enters the jury box. . . let him go. He is cold as the grave; he knows right from wrong, although he seldom finds anything right. Get rid of him with the fewest possible words before he contaminates the others. . . Beware of the Lutherans, especially the Scandinavians; they are almost always sure to convict. Either a Lutheran or Scandinavian is unsafe, but if both in one, plead your client guilty and go down the docket.
Since Darrow wrote that about 70 years ago, there's been a wealth of research into how juries arrive at their decisions. That's how jury consultants can get up to $500,000 a trial. The problem is that most of the information they've acquired is proprietary, and they're not willing to hand it out. Sure, there's a lot of other research that's been done, but unless you want to spend a couple of weeks in the library leafing through back issues of the Journal of Applied Psychology or Law & Human Behavior, you're pretty much out of luck.
Until I stumbled across this site. It's done by a jury consulting company, and there's some good stuff on it, but by far the best is this, a collection of articles on social research of juries. Take the question I posed above, the effect on objections on the jury: if I make an objection, will they think I'm trying to hide something and take it out on my client? Turns out that's not the problem: my objection will just make the jurors place greater emphasis on that evidence, even if the judge rules it's inadmissible. Think that black jurors are more favorably inclined toward black defendant? Not so, if blacks are a minority on the jury, and the evidence against the defendant is strong; in that situation, they'll be harder on the defendant than whites will be.
Some of the stuff isn't earth-shaking; for example, if you need this site to tell you that women who carry condoms are less credible as sexual assault victims, you probably shouldn't be doing trial work to begin with. But most of it is quite informative. It's good to know, for example, before you decide to present character evidence, that it's not going to do you much good, and that if the prosecution questions the witnesses about specific bad acts, it's going to do you considerable harm. And if you're a judge, it's helpful to know that if you give a very brief explanation of why some piece of evidence is inadmissible, the jury's much more likely to disregard it. And if you're doing an appeal from a bench trial where there are some evidentiary issues, and you know the appellate court's going to use the old routine about how judges are expected to disregard inadmissible evidence, you might want to toss in the studies which show that judges aren't any better at that than jurors are.
You might also want to take all this with a grain of salt. I haven't read the underlying studies, and for all I know, they're bogus, or there are contradictory results in other studies. But, as I said, there's not a lot of hard data out there, and anytime you find some it's definitely worth a look.
Other than affirming a death penalty conviction, the Ohio Supreme Court didn't do much this past week. The decision in State v. Hale involved a 2004 killing here in Cleveland, and alleged 22 propositions of law. None broke new ground, and the Court affirmed the conviction and ordered Hale's sentence into... um, execution on November 6th of this year. Now begins the parade of post-conviction relief and habeas corpus petitions, and it's even money that I, at 58, will be dead before Delano Hale is.
Not exactly a typical thought for a Sunday morning, when I usually write this, but my mood is not lightened by the fact that it's Sunday afternoon, not Sunday morning. Apparently, my blog host thought they were AT&T, and decided to have a service interruption for most of the day, forcing me to sit inside on a loverly afternoon and do this. So, before I get even more cheesed off, let's get on to the courts of appeals...
Some final observations on the last Supreme Court term. (Final = for now.)
Diversity. Linda Greenhouse has been the New York Times Supreme Court reporter for the past 30 years. She's an attorney herself, and whenever there was an oral argument or a decision on a major case, her stories on it would be the first I'd read. Her commentaries were invariably incisive, couched in the words of a layman but carrying the insight of a lawyer.
Greenhouse is leaving the Times after 30 years on the beat, and in Sunday's paper she looks back on that time, during which the Court handed down almost 2,700 decisions. What I found most interesting was how moved she was by the appointment of the first woman justice, Sandra Day O'Connor, to the Court in 1981.
The reason I found it interesting is that when I blogged about the Court's decision this term in Snyder v. Louisiana, in which the Court struck down Louisiana's penalty of death for child rape, I read Coker v. Georgia, the 1977 decision in which the Court had ruled unconstitutional the Georgia statute permitting capital punishment for "ordinary" rape. Although the victim in Coker was 16, the courts (both state and Supreme) treated her as an adult. More difficult, from a vantage point thirty years later, was this sentence: "Although it may be accompanied by another crime, rape, by definition, does not include the death of or even the serious injury to another person." Somehow, I doubt if that sentence would have appeared in the opinion if O'Connor or another woman had been on the Court.
We tend to ridicule the notion of reserving a spot on the Court for a "black Justice" or a "woman justice" as quota-ism taken to the extreme. But there's a purpose to it. The Court is the most elitist and non-democratic institution in our government, and that needs to be leavened a bit. Whether intended by the Framers of not, the fact remains that the Court has a powerful impact on the lives of the people in this country. Clarence Thomas has certainly not been an ardent advocate of the views of blacks in this country, but only a black could have given the perspective he did when the issue of cross-burning reached the Court. Whatever one's views on abortion, it is certainly arguable that any decision will be more acceptable to the public if it is not made by nine men.
That doesn't mean that the Supreme Court has to look like America, but it shouldn't look like the University Club, either.
A victory for original intent? Reading the opinions in Heller, the Court's decision affirming that the 2nd Amendment created an individual right to bear arms, was not for the squeamish (or for those with limited time), but it was interesting in at least one respect: all the opinions revolved around the question of what the Framers had intended when they drafted the Amendment. And the search for originalist meaning did not stop at Heller; from Giles to the Boumedienne, the justices seemed intent on sifting the entrails of 17th and 18th century British and American legal writings to determine what was the intended scope of the confrontation clause or of habeas corpus.
As this article notes, that's not necessarily a good thing:
Neither Scalia nor Stevens is a "competent historian," University of Texas at Austin professor Sanford Levinson wrote in another Balkinization posting. Their work is "what is sometimes called 'law-office history,' in which each side engages in shamelessly (and shamefully) selective readings of the historical record in order to support what one suspects are predetermined positions."
Wow. Lawyers choosing the evidence which supports only their side. Who woulda thunk it?
More on Heller. Many commentators, yours truly included, have suggested that the Court's decision in Heller raises some questions about the validity of some gun laws, like those prohibiting possession by ex-felons, or even, in certain cases, the 1-year firearm specification under Ohio law. Former Solicitor General Ted Olson chimed in with his opinion that "the Court might decide there are some classes of felons that ought to be treated differently from other classes of felons" in an interview in this article. And Prof. Berman points to some other questions, like whether a defendant who's pleading to a felony needs to be advised that he's giving up his constitutional right to have a gun.
It's going to be interesting to see how this develops, and it may develop in ways that a lot of people didn't intend it to.
See you on Monday.
It's not the things you don't know that hurt you, it's the things you know for sure that just ain't so. -- Anonymous
I was surfing the web the other day and came across a post on Prof. Berman's Sentencing Law & Policy blog, citing another pair of newspaper articles bemoaning the mass incarceration that has taken place in this country. I say "another" because it's hard to go a week without finding some story pointing out that America now leads the world in rate of imprisonment of its citizens. I've contributed my own noise to this din, as typified by this piece a year and a half ago. In fact, it's become the accepted conventional wisdom that
- We imprison too many people
- We imprison them for too long
- Many of them are non-violent offenders who pose little threat to society
- Minorities, and especially blacks, suffer disproportionately, usually because of drug laws that are especially punitive toward them (e.g., the powder/crack disparity)
So I was a little taken aback by a George Will column I came across a few weeks ago, which basically rejected all those claims. The increase in our prison population is due almost solely to an increase in violent offenders being sent to prison with greater frequency and for longer durations. Absent recidivism, the chance of a non-violent offender being sent to prison is exceedingly low. And the reason blacks are sent to prison in disproportionate numbers is because they commit a disproportionate number of crimes.
These aren't Will's opinions, they're the product of research by Heather MacDonald, a fellow at the Manhattan Institute, a right-wing think tank; the article which serves as the basis for Will's piece was published in the Institute's City Journal, and can be found here. As Ms. MacDonald's ouevre indicates, she's hardly an impartial source; article titles like "Remove Cuffs on the LAPD," "NYPD: Heroes in the Dark," and "What's behind stop &frisks? High black crime," she basically gives the game away. That doesn't mean she's wrong, though: even a writer for the ideologically opposite Mother Jones, while at one point denouncing her as "the thinking bigot's Ann Coulter, grudgingly concedes in another piece that MacDonald's "City Journal latest is a devastating response to the liberal shibboleth that the criminal justice system is racist and designed to criminalize and incarcerate blacks en masse."
It doesn't mean that MacDonald is necessarily right, either. There's a number of ways that you can play around with statistics, and as any good lawyer knows, if you adopt a particular perspective, it's not hard to come up with the evidence to prove that view. There's other evidence, including some studies that I cited in my post last year, that contradict, at least in part, some of MacDonald's assertions.
But that evidence may be no better than MacDonald's, because it may come from no less partial an observer. The degree to which flawed data can become accepted wisdom is demonstrated in another piece by MacDonald, one she wrote on the "campus rape crisis." She eviscerates the central claim of campus sexual-assault organizations -- that 25% of college coeds will be the victims of rape or attempted rape -- noting
If the one-in-four statistic is correct, campus rape represents a crime wave of unprecedented proportions. No felony, much less one as serious as rape, has a victimization rate remotely approaching 20% or 25%, even over many years. The 2006 violent crime rate in Detroit, one of the most violent cities in the U.S., was 2,400 murders, rapes, robberies, and aggravated assaults per 100,000 inhabitants -- a rate of 2.4%.
One of the major issues facing this country is crime and punishment, and that's largely intertwined with race. The main point here might be that instead of an intelligent discussion of the subject based upon objective evidence, we are faced with impassioned advocates, each with an ideological axe to grind, each presenting flawed data in an attempt to vindicate their view. A little skepticism of all claims might be in order.
I've spent the last week in a kiddy-rape trial, a particularly nasty one (as opposed to the kiddy-rape trials that are loads of fun). One of the few highlights of the trial was my discovery of a Cleveland detective with the least expansive view of the 4th Amendment I've ever seen. The alleged victim in the case claimed she was raped in a particular house, and two days after the incident took the police to that exact address. The detective waited five weeks to get a warrant. Why? Because, according to him, he needed a named suspect to get a warrant. He's got several hundred colleagues who operate under the belief that they have the right to frisk anybody they talk to, and this guy doesn't understand that searches run against the property, not the individual.
The Supreme Court's decision last week in Barnes v. University Hosp. dealt with two widely disparate subjects, at least one of which will probably not matter to the great majority of the people in this state. It does provide an interesting look at how the court works, though, and how it deals with certain issues. Or doesn't deal with them, as the case may be.
Lots of cases from Columbus this week, perhaps the biggest being Barnes v. University Hospitals of Cleveland, concerning "private" judges and punitive damages. I'll have more on that tomorrow.
Hageman v. Southwest Gen. Hospital shows how easy it is for a lawyer to get into trouble. I'd blogged about the case when it hit the court of appeals; basically, the plaintiff had been involved in some custody litigation, and his psychiatric records had been subpoenaed by the wife's attorney. The plaintiff later sued the hospital, doctor, and attorney for violating the confidentiality of his medical records. The 8th District affirmed the grant of summary judgment to the doctor and hospital, saying that the plaintiff's filing of the custody suit constituted a waiver of the right. The plaintiff had also been charged with domestic violence, though, and the wife's lawyer had given the records to a prosecutor. The 8th District said that was a no-no, and the Supreme Court affirmed its reversal of summary judgment for the lawyer.
In State v. Baker, the Supreme Court reverses the 9th District's hypertechnical reading of what is required for a final journal entry under CrimR 32(C). I'd blogged about this last year: The 9th District had read the rule to require that an entry require not only a statement that the defendant had pled guilty, but a further "finding of guilt" by the court; absent that language, the 9th District held that the entry was not a final appealable order, and thus dismissed the appeals. The Supreme Court reverses, holding that a statement that the defendant pled guilty is sufficient.
Finally, in Ohio Civil Rights Comm. v. Akron Metro. Housing Authority, the court held that a landlord can't be held liable for not evicting a tenant whose racial harassment of another tenant was creating a "hostile housing environment."
On to the courts of appeals...
Class Actions. Imagine how you would feel as a parent. You've gone out and bought your 15-year-old son Grand Theft Auto: San Andreas for his Playstation. Sure, it's a violent game, in which he'll get to kill and maim to his heart's content. And that's just policemen and innocent pedestrians; what he gets to to do to the (other) bad guys has bodies stacked up like cordwood about an hour into the game. But then you find out that if little Johnny downloads a cheat code, he can unlock a hidden portion of the game which allows him to watch his character engaging in simulated sex acts -- no genitalia observable -- with various "girlfriends." The people who made the game didn't tell you about that part! The horror!
At least, that's what Seth Lesser, the lead lawyer for the plaintiffs who filed a class action against the gamemaker for fraud, thought. So he must have been disappointed when, of the 21.5 million people who bought the game, only 2,676 filed claims in the class action.
So this winds up being the payout for those claims:
Tier 1 (up to $35.00) (no exchange required): 416
Tier 2 (up to $17.50) (exchange required): 22
Tier 3 ($10.00) (exchange required): 131
Tier 4 ($5.00) (no exchange required): 2,050
Disc Exchange w/o cash: 57
The total payout to the claimants, who represented approximately 1/100th of 1% of the people who actually bought the game: $30,000. The total payout to the 12 law firms who represented the plaintiffs? $1 million.
Bad Santa. This one, courtesy of the Volokh Conspiracy, needs no embellishment:
The Amalgamated Santas, one of the nation's largest Santa groups, are dealing with a schism in their ranks. The rift has left burly bearded men accusing one another of bylaw violations, profiteering and behaving in un-Santa-like ways. Some Santas have filed complaints of wrongdoing against others in Kentucky and Pennsylvania.
The once-fraternal Santa impersonators began to split last year when a power struggle unseated their top Santa and most of his board of directors. Further polarizing the Santa world, new splinter groups have formed to woo disaffected Clauses and their allies. The new Fraternal Order of Real-Bearded Santas, for example, also welcomes "affiliates of Mrs. Clauses, Designer Beard Santas and Elves."
And he ate $6.8 million in doughnuts after getting buzzed. Our boys in blue down in Naperville have made their impact on the drug trade, as this story relates:
A man from Naperville's northwest side remained jailed Wednesday night on a $2 million cash bond, after being stopped on an Ohio highway with nearly $5 million worth of high-grade marijuana in his car, authorities said.
A search of the vehicle yielded 104 pounds of hydroponically-grown marijuana stuffed inside eight black plastic trash bags. Police said the marijuana had an estimated street sale value of more than $4.7 million.
As Drug War Rant points out,
According to my rough math, that's over $45,000 a pound or $2,824.52 per ounce. That makes it about three times as valuable as gold.
Bullshit lawsuit of the week. From across the pond:
A Paddington train crash survivor who claimed he was turned into a killer by post-traumatic stress disorder stands to receive thousands in compensation after a landmark Appeal Court ruling today.
Judges ruled that Kerrie Gray, 48, is due damages from rail firms after he was incarcarated in a mental hospital for stabbing a pedestrian to death with a kitchen knife in August 2001, two years after the horrific crash in which 31 people died.
See you on Monday.
Back in October of 2006, I criticized the 8th District for indicating in a decision that State v. Boston, the 1989 Supreme Court decision which prohibits expert testimony on whether a child abuse victim is telling the truth, doesn't apply where the child testifies at trial. To show you the kind of weight I carry up here, the court has since completely backed off that idea, except in the, oh, about five cases since then when they've discussed the issue, most recently last week in State v. Futo.
Being the kind of guy I am, I figured it was only appropriate to consider the possibility, however remote, that I might be mistaken in my analysis. So let's pop the hood and take a look at this a bit more closely.
We'll start with Boston, and the syllabus of that case pretty much says it all:
An expert may not testify as to the expert's opinion of the veracity of the statements of a child declarant.
What happens after that is a classic example of the appellate court version of the old parlor game "telephone," in which one person whispers a statement to another, that person passes it on to the next participant, and so on, with the invariable result being that the final version is wildly at odds with the original.
In 1994, the 5th District decided the case of State v. Kelly, which involved several issues, the key one of which was the hearsay rule allowing statements made for purposes of medical treatment and diagnosis. Boston had dealt with that issue, too, and so had some subsequent cases. We won't get into it here, but basically the court in Kelly concluded that the evidence was allowable under the rule because the victims had testified.
Four years later, the same court decided State v. Fuson, which dealt with the admissibility of expert testimony as to whether a child was telling the truth about being abused. The court held that the testimony didn't go to the child's veracity, but inserted this puzzling phrase:
As we stated in State v. Kelly, Boston does not apply when the child victim actually testifies and is subjected to cross-examination.
The court misread its own case; the portion of Kelly which discussed the effect of the child actually testifying had nothing to do with expert testimony on veracity.
From there, things go all to hell: the 5th District restates the dicta in Fuson in a 2005 case, but now it becomes a holding. The next year in State v. Benjamin, the 8th District comes to the same result, stating that "recent case law states that Boston does not apply when the child victim actually testifies and is subjected to cross-examination," and citing the 5th District cases for that "recent case law." Since Benjamin, the 8th District has applied the same rule, in almost exactly the same language, in at least three other cases, most recently in Futo.
The only glimmer of reasoning as to why Boston shouldn't apply when the alleged victims testify is contained in a case from earlier this year, State v. Amankwah. In upholding the mother's testimony that her child was telling the truth, the court noted,
In this case, the child victim testified and was subject to cross-examination. The jury was able to hear her answers, witness her demeanor, and judge her credibility independent of her mother's testimony.
Now, there's certainly some merit to that position, especially in the context of this case: the jury might well have discounted the mother's testimony because of her obvious bias, and thus the child's testimony would have been given foremost consideration.
But it's hard to see how the child's appearance at trial solves the problem of the expert vouching for the child's credibility. The jury could obviously be expected to give much more weight to an expert's testimony on this point than a mother's. In fact, that was the central tenet of Boston; expert testimony
acted as a litmus test of the key issue in the case and infringed upon the role of the fact finder, who is charged with making determinations of veracity and credibility. In our system of justice it is the fact finder, not the so-called expert or lay witnesses, who bears the burden of assessing the credibility and veracity of witnesses.
No jury would discount expert testimony on that issue. In no other context would the state be permitted to present an expert witness whose sole function was to say that another witness is testifying truthfully, regardless of whether that witness testified himself. The final nail in the coffin is the Supreme Court's 1998 decision in State v. Stowers, which involved the question of whether the expert could testify that the child's behavior was consistent with that normally observed in sexually abused children. The court upheld that testimony, but was careful to draw the distinction from Boston:
Boston's syllabus excludes expert testimony offering an opinion as to the truth of a child's statements (e.g., the child does or does not appear to be fantasizing or to have been programmed, or is or is not truthful in accusing a particular person). It does not proscribe testimony which is additional support for the truth of the facts testified to by the child, or which assists the fact finder in assessing the child's veracity.
All four of the victims in Stowers testified at trial. If the court believed that confrontation solved the problem of expert testimony as to veracity, it had the perfect opportunity to do so.
This may not seem like a big deal, but it is. Veracity is a critical issue in any case, but especially in a child abuse case. The line between an expert saying that abuse is indicated and saying that the child's testifying truthfully about the abuse may be a fine one, but it's a line nonetheless, and as anyone who's tried one knows, a crucial one. You've now got three districts (the 4th has recently jumped into the fray, basing its ruling on -- what else? -- the 5th and 8th District decisions) holding that such testimony is admissible. That is logically untenable, based on shoddy research, and contradictory to the Supreme Court rulings on the issue. Eventually, if the districts don't correct it themselves, it'll have to be cleared up by the Supreme Court. In the meantime, though, there'll be a lot of cases wrongly decided because a prosecutor waved an opinion in a trial judge's face saying that expert testimony on veracity was admissible because the child testified, and the trial judge is going to go along with it because he or she doesn't have the time or inclination to wade through what really happened like I just did here.
I was over in court the other day, entering my third hour of waiting for a plea and sentencing, when the bailiff asked me if I wanted to handle a probation violation hearing. I hadn't done one in quite a while, so I asked another lawyer, who was entering his third hour of waiting for the prosecutor to find the file, what the fee for PV's was anymore. "Fifty bucks, I think."
Good, I figured, now I can have the operation. "Sure," I told the bailiff, and she handed me the stack of papers that had landed my client -- we'll call him Shawn -- a date with the judge.
It turns out Shawn wasn't that bad a guy. He was twenty-six, and this was his first offense. He'd apparently stolen some checks from his employer and tried to cash them at a Dairy Mart. Didn't work out so well. He'd been offered a shot at the diversion program, which would have let him get out of the whole scrape without a criminal record if he paid off the $791 in bad checks, but that stopped being a possibility when he was capiased for failing to show up for a pretrial -- on two separate occasions. He wound up pleading out to a single count of theft, with the state dropping the charges of forgery and receiving stolen property. He got probation, for just a year, with the usual conditions: don't get into trouble, find a job, and pay back what you took. That was in September of 2007, so it seemed like a good bet when Shawn entered the home stretch in the summer of this year that he'd make it.
Well, not quite. He came up positive for marijuana in early June, and obviously was aware that something might go awry with his test: he showed with a condom full of urine that he was going to use to fake his way through it. (They have people checking for those things. Nice job, huh? Must be some great conversations over the family dinner table at night.) The probation officer also noted that Shawn still didn't have a job, and hadn't paid a dime of his court costs and restitution. He put in a violation on Shawn, but the judge simply extended his probation until December and told him to get his act together.
So the next month, Shawn tests positive for marijuana again, still hasn't gotten a job, and still hasn't paid anything. And that's where I am last Thursday.
Before we go out for the hearing, the judge pulls me aside, tells me he's tired of my guy, and is going to give him nine months. I tell him what Shawn's told me: he's working for a landscaping company, and gave the evidence of that to his probation officer, but the PO's on vacation; we need a continuance of a week. The judge shrugs that off, and says okay, he'll give Shawn seven months.
We go out for the hearing, and I put on a good dog and pony show, about how this is Shawn's first offense and now that he's got a job he can start making payments and wouldn't it be a waste of the taxpayer's money to send Shawn away for, essentially, smoking marijuana. Shawn does his part, sounding sincere, and the judge finally relents and agrees to continue him on probation, telling him in no uncertain terms that the next time there'll be no excuses, and Shawn will do a full year.
We go outside so I can get Shawn to sign my fee bill. He's got no problems on that score; he knows he dodged a bullet. "That was pretty close, huh?" he says to me.
I smile. "If I was you, kid, I'd go out and buy a lottery ticket." He looks at me, perplexed. "Because you're never going to be luckier than you are today." He laughs, but I remind him that he needs to stay off the weed, keep his job, and make payments on the costs and restitution. Needs to do that. It is so very, very important that he do that. Shawn's a good-looking kid, and he's maybe 5'8", 130 pounds, and they'll eat him up in prison. I don't tell him that part. Maybe I should have.
Because yesterday I call the bailiff to get the case number to put on my fee bill. She had Shawn's file right on her desk. "He picked up a new case on Saturday," she tells me.
Oh, that plea and sentencing I was there for to begin with? My guy copped to six years. No big deal, he says. "I'll only be twenty-six when I get out." I remember the times I had between the ages of twenty and twenty-six. I don't think I would have those experiences if there'd been bars on my windows.
I ran into Rich Haber right after he won his client a $46.6 million jury award last week. Rich is a good guy and a great lawyer (like he wins the biggest award in Ohio history, and you need me to tell you that), but he readily acknowledged he's got some ways to go before collecting. He's right, especially with regard to the punitive damages -- $43.1 million out of that $46.6 million. How much he collects could depend on what happens when the Widow Williams and Phillip Morris square off in the Supreme Court for the third time next year.
The big case out of Columbus this week was Angel v. Reed, a personal injury case arising out of an automobile accident. The police report indicated the defendant was insured by Nationwide, but it turned out the company had cancelled his policy before the accident. Angel eventually made a claim against her insurance company under the uninsured motorist coverage.
The "eventually" part was the problem; the policy had a two-year limit for filing claims, and Angel had filed hers after that time had elapsed. She claimed that the the period for filing a claim didn't being to run until she discovered that the defendant was uninsured. Not so, said the Court, especially since she could have found that out simply by contacting Nationwide. The moral, of course, is to do your due diligence; my guess is that the next insurance company Angel's lawyers contact will be their own.
On to the courts of appeals...
One of my goals in starting this blog was to create a resource for solo practitioners and small firm lawyers who don't have the resources the big guys have for research. In that light, today's post is a rundown of the major US Supreme Court cases this year involving criminal law. If I did a extended post summarizing them, there's a link to that. There's also a link to the decision, and links to any previous posts I've done about them. In the future, if you want to get to this page, just stick "supreme court recap" in the search box on your right.
District of Columbia v. Heller: Court holds that 2nd Amendment creates private, individual right to own firearms, strikes down DC's virtual ban on gun ownership. Summary here; other posts here and here.
Baze v. Rees: Court upholds constitutionality of "three-drug cocktail" for lethal injection.
Begay v. US: Prior conviction for felony DWI was not a violent crime for purposes of the 15-year enhancement under the Armed Career Criminal Act.
Burgess v. US: A drug conviction involving a sentence of more than one year is a felony, for purposes of the Controlled Substances Act, which doubles the mandatory minimum for a drug conviction, regardless of whether the conviction is classified as a misdemeanor under state law.
Giles v. California: Defendant doesn't forfeit his right to confrontation under Crawford by preventing witness from testifying unless his actions were done with the intent of preventing the witness from appearing at trial. Summary here; other post here.
Kennedy v. Louisiana: Strikes down Louisiana's death penalty for child rapists. Majority opinion clearly states that, outside of espionage and treason, death penalty is inappropriate for any offense that does not involve the intentional attempt to kill another person. Summary here; other post here.
Indiana v. Edwards: Competence to stand trial does not necessarily entitle defendant to represent himself; competence to stand trial and competence to serve as one's own attorney are separate questions. Brief summary here.
Danforth v. Minnesota: Courts are free to determine their own rules of retroactivity regarding US Supreme Court decisions, regardless of how the Court itself determines the retroactivity question. Brief summary here.
Snyder v. Louisiana: Court reverses a death sentence, holding that judge did not exercise sufficient control over prosecutor's exercise of peremptories on black jurors; case mainly stands for proposition that less deference is due by appellate courts to trial judge's examination of Batson challenges. Summary here; other post here.
Gall v. US: A sentence outside the Federal Sentencing Guidelines is not presumptively unreasonable; and Kimbrough v. US: A sentence outside the Guidelines is not presumptively unreasonable simply because it is based on a disagreement with the sentencing disparity between crack and cocaine powder. Together, the decisions restore wide discretion for district judges in sentencing decisions. Gall summarized here; Kimbrough summarized here.
Virginia v. Moore: Fourth Amendment requires only that police have probable cause to believe crime has been committed in order to arrest; whether arrest is permissible under state law does not affect question of legality of arrest, or admissibility of evidence obtained incident to arrest, under the Federal constitution. Summary here; other post here.
Like everybody else, I'm taking the 4th off. See you on Monday.
As might be expected with the recognition of any new constitutional right, 2nd Amendment law in the next few years is going to be a very interesting field. Here are some of the questions posed for criminal law attorneys by the Supreme Court's decision last Thursday in District of Columbia v. Heller:
Does it even apply to the states? Right now, no; DC is obviously Federal territory, and the question of state laws pertaining to firearms wasn't raised. In previous cases, all pre-1900, the Court has held that the 2nd Amendment applies only to the national government, but in footnote 23 in Heller, Scalia points out that the first decision also held that the 1st Amendment didn't apply to the states, and that it "did not engage in the sort of Fourteenth Amendment inquiry required by our later cases." Given the state of incorporationist theory over the past century, I cannot foresee any possibility that the 2nd Amendment will not be applied to the states, based on Heller. This will be decided by the Supreme Court; I don't see the circuits and the higher state appellate courts coming to a contrary conclusion.
How does it affect weapons under disability laws? Scalia wrote that "Nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill." While it's doubtful that any gun rights groups are going to pursue that issue, defense attorneys will certainly raise it, and there's some room for maneuver. Ohio law prohibits anyone who has committed certain felonies from ever possessing a gun. Federal law is even more unforgiving: anyone who's ever committed a felony (and, in some cases like domestic violence, a misdemeanor) is subject to a 10-year prison sentence for having one.
One doesn't forfeit other constitutional rights for having a felony conviction; as Doug Berman put it in a post on SL&P:
Would anyone find constitutional a federal law that made it a felony offense — and one subject to a 10-year federal prison sentence — for any and all previously convicted felons to hire a lawyer?
Now, it'd certainly be a stretch to argue that somebody who's had three agg robb convictions can't be barred from having a gun, but it's equally a stretch to argue that a 46-year-old man who had a conviction for misdemeanor pot possession as a juvenile can be, as he is under RC 2923.13. Depending on the nature of the crime creating the disability, the lapse of time since conviction, and the purpose of possession (kept in a home in a high-crime neighborhood), there's an argument to be made here.
What about gun specifications? Federal law imposes additional penalties for the use of a gun in a crime (usually five years), while Ohio law adds time for possessing (one year) or brandishing (three years) a gun during a crime. The one-year Ohio gun spec could be subject to attack; unlike the Federal law, that spec does not require that the gun actually be used, and "possession" can be constructive. There are cases where a defendant is charged with a one-year spec because drugs were found on the kitchen table and a gun was found in the upstairs bedroom. Given the supposed link between guns and drugs, this is going to be a hard sell, but in the right case it might be worth a shot.
What test is used to determine whether the right has been infringed? This one is completely up in the air; the only reference to it in Heller is this line:
Under any of the standards of scrutiny that we have applied to enumerated constitutional rights, banning from the home "the most preferred firearm in the nation to 'keep' and use for protection of one’s home and family" would fail constitutional muster.
What particular standard the courts employ is the key. The highest level of scrutiny is "strict in form, fatal in fact"; only seven times has the Supreme Court upheld a law subjected to the strict scrutiny test. You may have to dust off the law books here, and I'll keep my eye out for the briefs and decisions that are sure to follow on this subject, but for right now, you've got to be arguing strict scrutiny as though this were a 1st Amendment case.
Giles v. California presented a pretty simple fact situation. The defendant had shot and killed his former girlfriend. He claimed self-defense, an assertion that was complicated by the fact that she didn't have a weapon, and had been shot six times, at least once while she was lying on the ground. Complicating it even further was the testimony of a police officer that, three weeks before the shooting, Giles had accused her of having an affair, choked her, and held a knife to her face, telling her that he'd kill her if he found she was cheating on him.
The testimony of the police officer was the problem; the defense claimed that the girlfriend's statements were testimonial under Crawford v. Washington, and thus shouldn't have been admitted. The California Supreme Court decided otherwise: since Giles was the one who was responsible for the ex-girlfriend's unavailability, he had forfeited his right to object to his inability to confront her.
The Supreme Court reversed last week, deciding that while Giles' murder of his girlfriend was responsible for her being "unavailable," to put it mildly, he didn't kill her for the purpose of making her unavailable, so it sorta didn't count, at least for confrontation purposes.
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