August 2008 Archives
Ungrateful bastard. I felt kinda bad for the comments I made yesterday about how Cuyahoga County has raised the assigned counsel fees back to what they were in 1978. After all, at least for the low-level felonies, it works out to a 25% raise from what they were after they got cut back in 2002. A 25% raise is nothing to sneeze at.
On the other hand, I dug up on online inflation calculator and punched in some numbers. If the fees had kept up with the rate of inflation since they were instituted back when Jimmy Carter was discussing nuclear proliferation with his then-11-year-old daughter, the minimum would now be $1,674.00. And from the other perspective, $500 back then is worth a little under $150 now.
To be sure, this puts my retirement plan on firmer footing, but that's not saying a whole lot, considering that my retirement plan heretofore consisted of deciding whether I preferred to spend my twilight years muttering the phrase "Welcome to Walmart" or "Would you like to Supersize that?"
Smiling Bob ain't smiling no more. Speaking of supersizing, SL&P points us to this story about Steven Warshak, the founder of Berkely Premium Nutraceuticals, whose major product was a "male enhancement" pill called Enzyte. Turns out that the company was rife with fraud, and it looks like Warshak will be doing hard time. Tough to believe that this wasn't on the up-and-up.
(Your double entendre here--->____________________)
Milestones. Monday's will be the 600th post I've made on this blog. By the time I get back from vacation -- more on that in a minute -- I'll have been doing this for two and a half years. It takes a fair amount of time, probably about ten hours a week, but I enjoy doing it. Yesterday I ran into four different lawyers who mentioned that they read the blog, and I know several judges who do, too, and that's a nice little ego trip. At a relatively precocious age, I came to the realization that if you speak and write well, people will think you are much more intelligent than you actually are. This blog has put the exclamation point on my life-long attempt to prove that theory.
I'm going to making some changes here in a couple of months, some cosmetic, some functional. I'd like this to be a little more user-friendly as far as a resource goes, so that you can more easily access the posts on a particular topic, like stop-and-frisk or speedy trial. The blogroll needs a major reworking. There are more Ohio blawgs out there than when I started, and some of them are pretty good. And if any of you have any ideas as to what you'd like to see more of -- or less of -- hit the Contact button above and send me an email. No, "more pictures of nekkid women" is not an option.
Next's week's a short week: I'm taking off for Labor Day, too. The Case Update will be on Tuesday, and then I think I'm going to do a couple of posts on the exclusionary rule. I'll be on vacation the week after that, and when I return on the 15th the Ohio Supreme Court will be back in session, and I'll have some posts about some major decisions on tap in the US Supreme Court this term, too.
See you on Tuesday, and have an enjoyable holiday weekend.
They didn't show this on LA Law.
It's not easy to practice law here in Cuyahoga County. This morning I walked over to my my 9:00 criminal cases at about 9:15. I've got two pretrials and a hearing on a motion to suppress. No, I'm not a guy who's usually late. I used to be at pretrials at 9:00. In fact, the other day I showed up for one at ten minutes to nine, and the bailiff looked at me like I'd lost my mind. If you're lucky enough to find a prosecutor in a courtroom by 9:15, it's even money that he'll tell you that another prosecutor will be bringing up the files. Which will eventually happen.
The line for the elevators to the main courtrooms winds back past the information desk and down the stairs, snakes along the coffee kiosk, goes up another set of stairs, and finally ends by the admission entrance for the jail. That's a 45-minute wait, at least. I do my usual routine: take the other set of elevators up to the 10th floor, then walk up four flights of stairs to the 12th floor. A lot of people get off the elevators on the 12th floor, where the arraignment room and a bunch of municipal courtrooms are located, so you've got a pretty good chance of catching a ride there, without having to wait in line. Perry Mason didn't have to wait in line for the elevators, I tell myself as I trudge up the stairs.
It's funny to listen to lawyers from other counties who come to Cuyahoga County for a case. They can't believe it. I don't blame them. Neither can I. I tried a case out in Lake County earlier this year. Seven witnesses. It took a day and a half. The trial was scheduled for 8:30, and by 8:30, the judge was on the bench and the jury was in the box. There were seven witnesses in the last case I tried in Cuyahoga County, too. It took five days. The trial was scheduled for 9:00. The judge showed up around 10:00, and spent a half hour in her chambers on the phone. The bailiff told us the judge had to get some pleas and sentencings out of the way, and we'd get started around 11:00. If we could get a jury, that is; we were 7th on the list. They finally got one by 3:15. The other days were better; we almost always got started by eleven, and some days as much as a half hour before that.
I make it up to the first courtroom, and find the prosecutors are short-handed; there's only two of them, instead of three, to handle the two courtrooms on that side of the building. Each judge has about ten to twenty pretrials scheduled. It's the first pretrial in this case, and after waiting a few minutes, it's my turn. I sit down and start jotting notes on my legal pad as the prosecutor reads the police report to me.
Yes, that's right. He read it to me. In other counties, you're given a copy of the prosecutor's file, but not here. Ohio doesn't have open discovery, and the Cuyahoga County prosecutor's office is as much a reason for that as anyone else; they've fought it tooth and nail. They will give you the exact items that Criminal Rule 16 says you're entitled to: names and addresses of witnesses, results of tests, statements of the defendant and any co-defendants. At the pretrials, they read you the police reports and anything else they think you should know.
What about exculpatory evidence? There's not exactly a tradition here of turning that stuff over to defense attorneys. One former prosecutor, Carmen Marino, was notorious for not doing that. Put my name into Google, and the first hit you'll get is this site. Put his name in, and the first hit you'll get is this story, about how three people got sent to death row because he hid evidence in their cases. Marino retired years ago. The prosecutors office gives an annual award in his name, with County Prosecutor Bill Mason lauding Marino as someone who "set the standard for what law enforcement should be."
I get done, get a new date for a couple weeks later, then go to my next pretrial. Rinse, lather, repeat. Then it's time for the hearing on my suppression motion. The prosecutor tells me he's run into a problem with the subpoenas for the cops: the sheriff's office forgot to send them over to the district, and both cops work the night shift, so they're in bed now, and he doesn't know how to reach them. The judge wants to talk with us about the case, but she's in another hearing. I hang around for another hour, go take care of a sentencing, and return. By that time, it's noon, so I go tell the bailiff I'll be back at 1:15. He's okay with that.
When I come back, the judge is still in the hearing. She gets done, then talks to the prosecutor and I for about a half hour, trying to work out a deal on the case. It's a drug charge, my client's got no record, and the judge thinks that the Early Intervention Program would be ideal: the client does a year of supervised probation, and if she stays clean, the charges are dropped. The prosecutor can't agree to that without his supervisor's approval, and the supervisor is in a meeting. We'll come back on Friday.
I get back to my office at two. There's a mass email waiting for me from the county administrator, informing all of the attorneys on the assigned counsel list that the assigned fee maximums have been increased. For a fourth degree felony, like the ones I was on this morning, I can get up to $500. For a first degree felony, like the one I had the sentencing for, it's a maximum of a grand. Forty bucks for out-of-court, fifty for in-court.
Those were the maximum fees back in 1978, when they were first established. Cleveland hit a rough spot in 2000, so they knocked a hundred dollars off the maximums. I didn't really notice the rough spot going away, here or much of anyplace else in Ohio, but I'm not going to look a gift horse in the mouth.
Still, I'm pretty sure Matlock got paid more than that for his cases.
Resentencing is pretty much a fact of life for judges any more. There are still cases coming back for Foster resentencings, and then there are all those cases where defendants have to be resentenced because of the failure to properly advise them of post-release controls. A decision by the 8th District last week raises a serious question about how those should be done.
So here's the situation. Cop is transporting a prisoner from the Sylvania jail to the Lucas County jail. Stops at a red light. Woman coming in the opposite direction makes a left turn, because she has a green arrow for the left turn. Cop, as noted in appellate court's opinion, "became confused and proceeded forward into the intersection in violation of the red light." Hits woman's car. She sues the city.
No brainer, right? Wrong. The trial court throws it out on the grounds that the city was immune from liability because the officer was responding to an "emergency call," and last week, in Rambus v. Toledo, the 6th District affirmed.
The court hung its hat on Colbert v. Cleveland, a 4-3 decision in 2003 that affirmed immunity for a couple of cops who'd taken off after some guys they suspected of making a dope deal. "Emergency call" is defined in the statute as
a call to duty, including, but not limited to, communications from citizens, police dispatches, and personal observations by peace officers of inherently dangerous situations that demand an immediate response on the part of a peace officer.
The Colbert court looked at the three examples provided by the statute and decided that the "inherently dangerous situations" phrase applied only to the latter: "personal observations by peace officers." The court thus concluded that a "'call to duty' involves a situation to which a response by a peace officer is required by the officer's professional obligation."
This interpretation completely reads the term "emergency" out of the statute. But while the court's reasoning in Colbert is suspect, in Rambus it's downright wretched. It's one thing to suggest that police officers pursuing people they believe might have engaged in a drug transaction are responding to an emergency; it's impossible to see how that term could apply to a police officer who's merely transporting a prisoner and operating within the confines of regular traffic. In fact, the court's holding
because Officer Shirey, in transporting prisoner Franks, was responding to a call to duty as part of his professional obligation, he was, in fact, responding to an "emergency call"
would essentially allow the exception to swallow the rule; virtually anything could be considered as a "call to duty."
Sadly, Rambus isn't an isolated case of bad legal analysis; the 8th District came to the same result, in virtually the same fact situation, in 2005 in Rutledge v. O'Toole, and then followed it up this year by holding that an officer merely en route to pick up a prisoner was also on an "emergency call."
There are courts which have bucked this trend, as the 12th District did in Burnell v. Dulle a couple years ago, where a police officer had hit a pedestrian while pulling into a parking lot on his way to court to respond to a subpoena. Even there, though, the court had to do a tap-dance around Colbert, holding that "it was not Deputy Dulle's professional duty, but his civic duty, to respond to the subpoena."
Rambus had argued that the her position was supported by the dictionary definition of "emergency," which involves "a sudden, unexpected occurrence demanding immediate action." That's unquestionably the definition the legislature had in mind when it passed the statute; if they'd meant the exception to apply to any time the police were responding to any directive, no matter how mundane, they surely would have said so. The 6th District rejected Rambus' argument, saying that "we are compelled to apply the definition of 'emergency call' as set forth at R.C. 2744.01, not the definition of 'emergency' as set forth in the dictionary."
In Colbert, the court had to determine what the definition of duty was. So what did they do? The looked in the dictionary.
Frankly, a dictionary wouldn't have been needed. Colbert, Rambus, and other cases of similar ilk show what happens when courts get so wrapped up in the law that they lose sight of the ordinary meaning of words. The most troubling part of Rambus is this paragraph:
Rambus argues, without citation to any authority, that "[t]he important characteristic in an emergency call is that the emergency justifies a deviation by the police from the ordinary standard of care, to which they and the rest of the motoring public is obligated to adhere." Although this is not an illogical argument, it flies in the face of applicable authority and, therefore, is properly dismissed as meritless.
Rambus' argument could not have better summarized what anybody with a lick of sense -- and without having to suffer through three years of legal "education" -- would have interpreted the statute to mean. But God forbid that somebody actually use logic, instead of "authority."
It's decisions like this that lead a lot of laymen to conclude that Mr. Bumble was right.
Perhaps the most interesting decision out of the Supreme Court this past week, Ahmad v. AK Steel Corp., was one it didn't make. Eighteen months after the appeal had been filed, fifteen months after the court had accepted it, ten month after the briefs had been completed, and seven months after oral argument, the Court decided that it had been wrong to accept the case in the first place, and dismissed it as "improvidently allowed."
Ahmad involved the question of what effect the violation of an administrative regulation -- here, an Ohio Building Code requirement of stair handrails -- had on the open and obvious doctrine. The dismissal provoked an eight-page dissent from Justice O'Donnell and Justice Lundberg Stratton, who concluded that the open and obvious doctrine should apply to building code violations which are themselves open and obvious, such as the lack of a handrail. The dissent in turn provoked a blistering five-page concurrence by four of the other justices, noting that there was no evidence that the lack of a handrail here did violate any codes, concluding pointedly that "there is no wisdom or common sense" in deciding the case when "there is not a scintilla of evidence that a code violation occurred." Hey, guys, where's the love?
This isn't the first time the court's confronted a question about the effect of administrative regs on the open and obvious doctrine; last year, it had another case on that exact issue, involving the death of a 10-year-old girl in a hotel swimming pool. (You can find a fairly extensive discussion of the issues in my post here.) So what happened? The court dismissed that one as improvidently allowed, too.
In the only other case (besides a tax appeal), the court held in State v. Bartholomew that a trial court can order a defendant to pay restitution to the victim's reparations fund.
Courts of appeals don't have the luxury of being able to dodge cases, so let's see what happened there....
I'm offended that you find this offensive. Christian DeJohn wanted to express his views in his graduate military history courses at Temple University that women shouldn't be allowed to serve in combat. He feared, though, that this would run afoul of the university's policy against sexual harassment, which rather broadly prohibits "expressive, visual, or physical conduct of... a gender-motivated nature" which "has the purpose or effect of creating an intimidating, hostile, or offensive environment." So he did what any red-blooded American would do: he sued, and was rewarded a couple weeks ago by a district court ruling that the University's speech code was so vague it infringed upon constitutionally protected speech.
University speech codes have long been an embarassment to liberals who believe in the pre-eminence of free speech as a democratic value. There's certainly a value in discouraging people from degrading minorities, ethnic groups, women, the handicapped, or various other groups, but not at the cost of penalizing such speech, or making up rules so stupid that they bring the entire notion of civility into disrepute, such as Drexel's harassment policy, which bans "inappropriately directed laughter."
Still, I'd be a little bit more impressed with DeJohn if he'd waited until somebody actually complained -- let alone threatening him with disciplinary action -- about what he said before running off to court. Lord knows there have been plenty of people who were caught up in these codes who should've run off to court, like this poor guy who was threatened with discipline for having the temerity to read a book with a title that other people didn't like.
Take the money and run. At first blush, this NY Times story offers a simple lesson: if you're a plaintiff, you're better off settling than going to trial. After studying over 2,000 trials over a three-year period, the study found that the plaintiffs wound up with less than the defense had offered in 61%, compared to the 24% of cases in which the defendants were ordered to pay more than the plaintiffs had asked. Only 15% of the time was the decision to go to trial the right one for both parties: the plaintiff got more than the defendant had offered, and the defendant paid less than the plaintiff had asked.
But if you look closer, you find that while the defendants made many fewer errors, those errors were far more costly: on average the wrong decision for the plaintiffs cost $43,000 a case, but the cost for a mistake by the defendant was a whopping $1.1 million.
The reason for this is risk aversion:
The findings are consistent with research on human behavior and responses to risk, said Martin A. Asher, an economist at the University of Pennsylvania and a co-author. For example, psychologists have found that people are more averse to taking a risk when they are expecting to gain something, and more willing to take a risk when they have something to lose.
"If you approach a class of students and say, I'll either write you a check for $200, or we can flip a coin and I will pay you nothing or $500," most students will take the $200 rather than risk getting nothing, Mr. Asher said.
But reverse the situation, so that students have to write the check, and they will choose to flip the coin, risking a bigger loss because they hope to pay nothing at all, he continued. "They'll take the gamble."
Road trip. Let's count up all the weird things about this story, which comes to us courtesy of the Volokh Conspiracy:
The defendant is wanted only on a minor felony charge, in Butler County, Kentucky
He's in a jail in Bakersfield, California, some 2,000 miles away
The Butler County sheriff and a deputy go to pick him up. In a car
At the end of the 4,100 mile trip, they realize they have the wrong guy
Well, at least they had a good time:
On the way there, [the sheriff and deputy] stopped to sightsee at country music star Buck Owens' Crystal Palace in Bakersfield, Calif. On the way back, they bought T-shirts at a souvenir shop.
Amjad Dayem had been doing his time on the agg robb case he caught back in 1997, carefully marking each day of his ten-year sentence until his release date, which was August 31, 2007. Nine days before that, he got served with papers telling him he had to have a resentencing hearing because the judge in his case forgot to tell him about post-release controls, and if those aren't properly imposed he doesn't have to face the prospect of spending the next five years kowtowing to the whims of his parole officer. That re-sentencing hearing, by the way, was to be conducted on August 30, 2007, the day before he was to get out. What's the smart move for Amjad to make?
Well, at least according to the 8th District's decision in State v. Dayem, it's the wisest move in the criminal defendant's playbook: tell 'em you want a lawyer.
This 11th-hour notification and resentencing isn't unusual. It wasn't until 2004 that the Supreme Court held in State v. Jordan that advising a defendant of post-release controls was mandatory, and reaffirmed it in Hernandez v. Kelly. This prompted the legislature to pass a law, RC 2919.191, permitting courts to go back and resentence defendants so as to include PRC. The timing of the resentencing wasn't a factor, so long as it occurred before the defendant's release; back in March, in State v. Simpkins, the Supreme Court affirmed a resentencing which took place a mere five days before the defendant was released from prison.
That pretty much put the kibosh on Dayem's argument that imposing PRC after he'd served almost his entire sentence was unfair; if five days wasn't going to cut it in Simpkins, one wasn't going to do the trick here. The appellate court gave short shrift to four of his other arguments, too.
But Dayem struck gold with the last one. At the hearing, he'd been represented by the Cuyahoga Public Defender's office, and had asked for time to retain a private attorney. The Court denied the request, and proceeded to resentence him.
And that's what the 8th District hung its hat on in vacating the resentencing. It noted that the US Supreme Court, in US v. Gonzelez-Lopez (discussed here), had held that improper denial of retained counsel was "structural error," mandating reversal. As for the state's argument that this would have resulted in a delay beyond Dayem's release date, the court pointed out that, well, that wasn't exactly Dayem's fault, was it?
What's interesting is that just a couple weeks before that, in State v. Hunter, the 8th District, in an opinion written by the very same judge, had held that the defendant in another last-minute resentencing hadn't been prejudiced by the fact that his attorney had been appointed to represent him only an hour earlier. In that case, though, the attorney raised no claim that he wasn't prepared to go forward, and Hunter made no demand for private counsel.
What's also interesting about Dayem is its treatment of another issue, specifically, the continuing effect of Jordan and Hernandez. Those cases had held that the trial judge had to notify the defendant at the time of sentencing, both orally and in the journal entry, of post-release controls. After Hernandez, the legislature amended RC 2967.28 to provide that the failure of the sentencing court to do either (or both) of those things doesn't negate the imposition of PRC; in other words, it's automatically imposed for certain crimes. The Dayem court notes, albeit in dicta, that the amendment superceded Hernandez.
But that may not be true. As I explained a couple of years back, I think the amendment is unconstitutional. The problem in Hernandez and the other cases was not simply that the statute required that the judge inform the defendant of PRC at the time of sentencing. The problem was that PRC constituted a punishment, which only the courts are empowered to do. The Supreme Court had earlier, in Wood v. Telb, solved this by creating the fiction that the courts were really the ones imposing PRC, by decreeing it at the time of the sentencing. (Thereby "empowering" the Adult Parole Authority to implement it.) The amendment doesn't even address, much less resolve, the separation of powers problem.
Nobody's raised that yet. But someone eventually will.
Here's what I learned in
school court today: When you're doing a plea, and the prosecutor spells out the offense your client is going to plead to, and the judge says, "You mean that's a crime?", it's a pretty good sign for your client.
Contrary to what some might think, Ohio's law against criminal simulation doesn't prohibit someone from pretending he's a bank robber; instead, it bans things like selling counterfeit purses or movies. A couple of months ago, I'd been appointed to represent a guy charged with that very crime. According to the cops, they'd pulled into a gas station and heard my client asking a woman, "You want to buy some DVD's?" They'd quickly found the source of the bogus loot: a guy in a wheelchair selling them out of his car. They arrested him and let my client go. This was four years ago.
They indicted the guy in the wheelchair, and threw my client in as well. He'd moved to Florida by that time, and when he returned several years later, he found the charges waiting for him. Enter moi, stage left. The other defendant had pled to a misdemeanor, my client tells me he'll be happy to do the same, just to get the thing over with.
Not easy. First pretrial: prosecutor looks at file; it's about two inches thick, he has no idea why, says why don't we schedule another pretrial and he'll look over it.
Second pretrial: different prosecutor, has about as much idea what she's doing as my cat. ME: "My guy just wants a misdemeanor." HER: "Oh, we can't do that, we'll have to put him into diversion so he can make restitution." ME: "What's the restitution?" HER: "$391." ME: "That makes it a misdemeanor. It has to be more than $500 to be a felony." HER: "I don't think so." ME: "The people who wrote the law do, though, because that's what they put in there." She says why don't we schedule another pretrial and she'll check it out.
Third pretrial: different prosecutor, says he'll take the file down to get it marked as soon as he gets a chance. In the Cuyahoga County Prosecutor's office, only three people are allowed to authorize plea bargains, no matter how inconsequential the case. It's ten-thirty; he doesn't get "a chance" until quarter to twelve. He never comes back. By one-fifteen I leave.
Today: same prosecutor, he tells me he got the file marked to a misdemeanor. Forty-five minutes later, we do the plea. The prosecutor spells out the deal, including the possible fine, and says that there might be restitution involved, but doesn't know the amount. "Restitution?" says the judge. "How do you figure that out?"
"They bring in some rummy from the Motion Pictures Assocation," I tell her, "who explains why my guy is the reason Tom Cruise doesn't make more money."
That's a decidedly Marxist take on the whole thing, and may not show the proper respect for intellectual property laws. On the other hand, there's a legitimate argument that the criminal laws should reflect a balancing of society's finite resources and the harm that a particular crime does to society. It should also reflect whether prevention of the "crime" can be achieved by other means. The Motion Pictures Association of America, like the Recording Industry Association of America, hasn't exactly been reticent about suing websites which allow users to download movie or music files, nor about suing the users themselves. RIAA alone has sued over 20,000 users since 2004.
Of course, there have been problems with that strategy. Sometimes the devil's in the details, as indicated by this story about the RIAA's attempt to serve a lawsuit on a homeless man. It also relies on the defendants, rarely people of sufficient means to afford expensive litigation, to quickly cave and settle for a few thousand dollars. Only one defendant has taken a case to trial so far, and she was hammered for $220,000 by a Minnesota jury. The bad news for the industry is that the judge is now considering declaring a mistrial because he thinks he may have erred in not instructing the jury that the RIAA had to prove the defendant actually shared music files, not that she simply made them available for sharing. If he does, that could create an insurmountable problem for plaintiffs in downloading cases: with current technology, it's impossible to show that a file was actually downloaded from one computer to another.
But it seems to me that's where the whole thing should be fought out. I've seen cases which are essentially civil disputes, but where the party claiming injury decides to enlist the police and prosecutors as debt collectors. This is one of them.
In July of last year, I highlighted a 1st District case, State v. Hundley, to focus on the absurdities of Ohio's law on allied offenses as articulated by the Supreme Court's decision in State v. Rance. No doubt deeply influenced by my insightful analysis, this past April the Supreme Court clarified Rance in State v. Cabrales, which I discussed here. From a couple of court of appeals decisions last week, it appears that the 1st District got the memo, and the 8th did not.
A trio of civil decisions by the Ohio Supreme Court this past week. In Nadra v. Mbah, the court declared that RC 2305.10's two-year statute of limitations for personal injuries was the appropriate limitations period for Federal civil rights actions under 42 USC 1983; although the 6th Circuit and most Ohio courts had applied that statute, two districts used the four-year period under RC 2305.09.
In LaNeve v. Atlas Recycling, the court held that an amendment of a complaint to include two previously-designated "John Doe" defendants failed because of technical non-compliance with CivR 15(D) -- specifically, the failure to include "last name unknown" on the summons, and failure to use personal service. Amending a complaint to identify a John Doe defendant under the Ohio rules is probably one of the most complex human endeavors this side of reattachment of body parts, and there's a guy in my office who is probably one of the six lawyers in Ohio who knows exactly how to do it, so I'll ask him and maybe do a post about it. Or not.
Then there was VII Laser Sys. v. Shiloh Indus., which deals with the situation where the judge thinks the jury has awarded you too much money -- something that's happened to me... well, gosh, never -- and orders a remittitur: you either agree to take less money, or the judge orders a new trial. Shiloh explains that in such cases, the time to appeal runs from the date the plaintiff agrees to the remittitur, not from the date the judge orders it.
A bunch of disciplinary cases, too, the morals of which are: don't let your secretary file cases, take fees, and charge expenses on your behalf; don't charge an excessive fee, sue the client, and then try to bully the disciplinary committee; and don't commingle funds and then overdraw your IOLTA account.
Now, what happened in the courts of appeals...
Tarika Wilson's killer went free last week. "Killer" might not be the word a lot of people would use for Joseph Chavalia: he was the Cincinnati police officer who gunned down Tarika during a drug raid on her house, as she was holding her year-old child. The child was hit, too, in the shoulder and hand; one of his fingers had to be amputated. It's hard to fault the jury which acquitted Chavalia. Nobody argued that he went into the house with the intent of shooting anyone, and the jury obviously believed his testimony that he fired because he saw someone in the shadows, and thought shots were being fired at him. Turns out the gunfire was from downstairs, where police officers shot two charging pit bulls. That's just the unfortunate consequence of drug raids. Collateral damage, the Pentagon would call it.
Cheye Calvo knows all about that. Calvo's the mayor of Berwyn Heights, a small burg in Maryland. He came home from work on July 29, greeted his mother-in-law, Georgia, who was cooking dinner in the kitchen, then took his two labradors out for a walk. He noticed there was a package on the front steps, addressed to his wife, and when he came back he took the package into the house and set it on the living room table, then went upstairs to change. A few minutes later, he heard Georgia scream.
Georgia screamed because she saw men in black, wearing masks and carrying guns, running towards the house. It was the police. After breaking down the front door, they shot one labrador where he stood at the door to the kitchen, and shot the other one in the back as he was running away. Georgia was handcuffed and made to lie face-down on the kitchen floor, next to the body of one of the slaughtered dogs. Calvo came downstairs in his boxers, and was made to kneel down in the living room.
For nearly two hours, the police questioned Calvo and Georgia about the package, which, it turned out, contained 32 pounds of marijuana. Calvo and Georgia told them they didn't know anything about it. The police searched the rest of the house, then left. Calvo and his wife spent about four hours cleaning up the house afterwards; the police officers had tracked the dogs' blood everywhere.
A few days later, the police disclosed that they'd solved the crime: it turns out that a couple of men, one of them a FedEx deliveryman, had run a scheme where one would deliver the package to the door of a home, and the other would pick it up before it would be retrieved by the homeowner. Of course, that didn't happen here because the police had intercepted the package; they were the ones who placed it on Calvo's doorstep.
Although the police acknowledge that "the Calvos appear to be innocent victims," they've refused to apologize, saying they followed standard procedures.
They're right, and that's the problem: this is standard procedure anymore. The Cato Institute has a nice map of botched military raids, like this one, over the past twenty years or so.
Calvo's case is hardly unique, but he is, to a certain extent. Unlike Kathyrn Johnston, the 92-year-old Atlanta woman who was killed in a drug raid two years ago, or Salvador Hernandez, the 63-year-old man the Salem police shot 5 times in the chest in a drug raid back in 1996, or Tarika Wilson, Calvo is white, upper-class, and clearly innocent of any wrongdoing. And not just of drugs; when somebody winds up dead in a drug raid, the cops are willing to let just about anything float to the surface in an effort to divert attention from what they did. When the Denver SWAT team killed Ismael Mena in a drug raid on the wrong house back in 1999, they subsequently, and falsely, claimed that he was an illegal immigrant.
Calvo, to his credit, understands that:
The reality is that this happens all the time in this country and disproportionally in Prince Georges county and most of the people to whom it happens don’t have the community support and the platform to speak out. So I appreciate you paying attention to our condition but I hope you’ll also give attention to those who may not have the same platform and voice that we have.
He's written a letter to the Justice Department and requested a civil rights investigation into what happened. And maybe this'll nudge the cops off the desire to go Rambo on ordinary citizens. Calvo claims that while he was sitting there, handcuffed in his own living room, he heard one of the detectives confide in another that she was "excited" because this was her first raid. In Mena's case, the police had been accompanied on the raid by Colorado Rockies' second baseman Mike Lansing. No, you're not reading that wrong; it was subsequently learned that it was not unusual for Denver athletes to accompany police on those raids, just for the thrill.
So maybe that will change, or maybe not. I have a case now where the police did a SWAT team raid on a house over a controlled buy of $60 worth of marijuana. I asked the cop at a pretrial why they had the SWAT team there, and he told me they use a formula to determine whether to use SWAT, and my guy was "off the charts."
Some chart: he's 51 years old, and has a 1994 4th-degree felony conviction for drug possession and a 1982 conviction for aggravated assault.
One of the young lawyers in our office had her first jury trial last week, and she was asking around for pointers. We've got some excellent criminal lawyers in the office, and she wanted to take advantage of that resource.
She figured she might as well ask me, too, so we talked about jury selection. "What kind of juror do you think I should look for?" That kind of question invariably leads to the Search for the Fantasy Juror, in which you conjure up a juror who possesses the attributes and attitudes that make him so pro-defendant he'd rather open a vein in the jury room during deliberations than vote to convict your client. As might be indicated, that's pretty much an exercise in absurdity. A month ago another lawyer and I tried a rape case involving a 31-year-old defendant and 13-year-old victim, who were strangers to each other, and our defense was consent. ("Gee, Russ, how'd that go?" "Not so well, but thanks for asking.") We spent a little time on jury selection, and gave it up when we decided that our ideal juror was a single male in his 40's who spent at least $300 a month on pornography and phone sex.
I nodded sagely at her question. "One who will acquit your client," I responded. This Delphic response didn't go over so well; she rolled her eyes, mumbled something about being sure to hurry back the next time I had a fire sale on philosophical drivel, and left the room.
I dropped by to see how she was doing a couple days later, and wound up riding down on the elevator with her and her client on the lunch break. It was a drug case, and the state had just rested. The guy was also charged with having a weapon under disability, due to a prior misunderstanding about an armed robbery the police insisted he'd been involved in. My friend had bifurcated the trial, so that the judge heard the weapons disability charge; that way, the jury wouldn't know about his prior conviction.
Unless, of course, he testified. Which, apparently, he was pretty much intent on doing. "I don't think you should hide things from the jury," he said, a noble, if decidely foolish, sentiment.
"Hiding a criminal record from a jury is generally a good thing," I said.
"Well, man, I got a way to explain that, though, see? What I'd tell the jury is --"
"Hold it," I interrupted. "Let me tell you what you'd tell them. You'd tell them that in that other case you pled guilty, because you were guilty, and in this case you're innocent, so that's why you're taking it to trial. Right?"
"Right," he mumbled grudgingly.
"Yeah, well, I've seen lawyers try that routine about a hundred times. I'm still waiting for the time that it works."
My friend tried to sit on him, but he insisted on testifying. The jury came back with a guilty verdict forty-five minutes later.
Like the old line: Q. What do you call someone who doesn't listen to his lawyer? A. An inmate.
Back when the Supreme Court's decision in District of Columbia v. Heller came down and declared that individual ownership of a gun was a fundamental constitutional right, I predicted that courts would have to take a second look at the validity of weapons disability and perhaps even firearms specifications statutes. So far, that's not happening; Eugene Volokh over at the Volokh Conspiracy points us to the latest case, a decision out of the US District court in Alabama upholding a conviction of possessing a firearm after having been convicted of misdemeanor domestic violence.
As Volokh notes, the decision doesn't go beyond "Heller says that banning felons from owning guns is still okay," without engaging in an analysis of why that would apply to a misdemeanor conviction, even for a crime of violence. This shouldn't be too surprising. As I'd commented back in January, the notion that the 2nd Amendment protects an individual, rather than collective, right to bear arms is a truly revolutionary development in constitutional law. Courts have reflexively been upholding gun laws for well over a century, so it's not surprising that there's going to be some powerful resistance to the idea that some of those regulations might be unconstitutional. Sooner or later, though, some court's going to question why someone who's been convicted of, say, insider trading (or a 15-year-old misdemeanor drug offense) should be barred from owning a weapon. Doesn't Martha Stewart have a right of self-defense?
On another subject, I came across an interesting case while doing the Update for last week: State v. Topps, out of the 2nd District. The facts were a little funky: the police had been called to a bar by complaints that a white man in the parking lot was screaming for help. The cops got there, and sure enough, there were two guys, one white and one black standing at a pay phone, and the white guy was "screaming like there was something very very wrong going on." As the police approached, the black man, who shortly thereafter became the defendant, started walking away. The officers told him to stop, but he didn't, and you pretty much know how this story ends: they grabbed him, dragged him back to the patrol car, and patted him down, finding drugs.
The cops had no reasonable suspicion that Topps was engaged in criminal activity, but the court noted that there are a number of decisions holding that police have the power to detain potential witnesses, too. The court relied on the balancing test laid out in the US Supreme Court's 1979 decision in Brown v. Texas:
Consideration of the constitutionality of such seizures involves a weighing of the gravity of the public concerns served by the seizure, the degree to which the seizure advances the public interest, and the severity of the interference with individual liberty.
The court actually does a good job analyzing the various factors, and concludes that the police were within their rights to stop Topps.
But here's the kicker. The defendant had assigned a single error, that he had been unlawfully detained. As the court noted, "[defendant] makes no independent argument that there was no basis for a weapons pat-down, for officer safety, once he had been stopped." As I've harped on before, despite the widely-prevalent belief that if the police have a reasonable basis for a stop, they've got a reasonable basis for a frisk for weapons, that just ain't so.
Back in 1911, Ohio created the system of workers compensation. It offered a tradeoff: workers could receive compensation for their injuries without having to prove their employer was negligent; on the other hand, the compensation was less than the tort system would normally provide, and they gave up their right to sue the employer in tort. Until 1982, anyway, when the Supreme Court decided in Blankenship v. Cincinnati Milacron Chemicals that employees could still sue their employers for intentional torts.
As Deadheads might say, "What a long strange trip it's been"; since Blankenship the court's struggled mightily to come up with a definition of exactly what constitutes an employer intentional tort. That the test subsequently adopted in Fyffe v. Jeno's -- the employer had to know of the dangerous condition, know that subjecting the employee to it would create a substantial certainty of harm, and nonetheless require the employee to perform it -- provided something less than crystalline clarity is indicated by the Court's struggle with defining "substantial certainty": it's more than negligence, more than recklessness, less than specific intent, bigger than a breadbasket, smaller than a Volvo... I had an intentional tort case a couple years back, based on silicosis, and trust me when I tell you that the appellate decisions are all over the lot.
The Ohio legislature, never one to shirk its responsibility of rushing to the aid of its corporate benefactors, first dove into the morass in 1986, enacting a bill which defined the "substantial certainty" aspect of the test for an intentional tort:
"Substantially certain" means that an employer acts with deliberate intent to cause an employee to suffer injury, disease, condition, or death. [My emphasis].
The Supreme Court threw this out in 1991, so in 1995 the Ohio legislature made another pass at the problem, defining "substantially certain" in the exact same fashion: deliberate intent. The Supreme Court tossed that four years later, so in 2005 the Ohio legislature took this all to heart and passed a new statute which provided a new definition of the substantial certainty test, to-wit, as we lawyers like to say:
"substantially certain" means that an employer acts with deliberate intent to cause an employee to suffer an injury, a disease, a condition, or death. [Why bother?]
That the legislature has satisfied Einstein's definition of insanity -- repeating the same act with the expectation of different results -- adds only incrementally to our knowledge of that august body, of course. The interesting question is whether it's going to make any difference this time around. It didn't to the 8th District; a few weeks back, in Barry v. A.E. Steel Erectors, it ruled the statute unconstitutional, as the 7th District had earlier this year in Kaminski v. Metal & Wire Products Co.
Of course, the Supreme Court's the last word on this, and just last week the Court accepted jurisdiction on Kaminski, with the Usual Suspects, led by the Chamber of Commerce, filing amicus briefs lamenting the outrageous nullification of the statute. And this is where it might get interesting. As the court noted in Barry, the prior Supreme Court decisions had not only found problems with the statute -- as the court pointed out, it could result in an employer being held criminally, but not civilly, liable for an injury -- but had determined that the legislature had no business meddling in this area at all: the Supreme Court had ruled earlier that
the legislature cannot, consistent with Section 35, Article II, enact legislation governing intentional torts that occur within the employment relationship, because such intentional tortious conduct will always take place outside that relationship.
Of course, that was then, this is now. The Court had struck down tort reform on prior occasions, too, only to reverse itself earlier this year in Arbino v. Johnson & Johnson, discussed here. But while the Court in Arbino could pretend that "the statutes before us here are sufficiently different from the previous enactments so as to avoid the blanket application of stare decisis and to warrant a fresh review of their individual merits," there's no such out available this time: the statute is identical to the ones passed in 1986 and 1995, and subsequently declared unconstitutional.
There's a theory called critical legal studies which postulates that the law is created by the powerful to preserve their position. It's always been a little too "man the barricades!" for my tastes, but if the Supreme Court reverses a quarter century of precedents and essentially eliminates employer intentional torts, a reassessment of that position might be in order.
The gang in Columbus swung back into action last week. In State v. Jeffries, the Supreme Court held that only a statement made during plea negotiations or discussions is inadmissible under EvidR 410; the defendant's statement at issue here was made before the plea negotiations commenced, and was submitted when they did begin. In State v. Silsby, the court held that its sentencing decision in State v. Foster applied only to those cases that were pending on direct appeal at that time, not to cases where, as here, the defendant filed a delayed appeal after Foster came down.
The big civil decision came in Environmental Network Corp. v. Goodman Weiss Miller LLP, on a subject near and dear to our hearts: attorney malpractice. Clarifying an earlier decision, the court held that where a malpractice action is based on the theory that the client would have received a better outcome if the case had been tried instead of settled, the client has the burden of proving that (a) he would have prevailed at trial, and (b) the result of the trial would've been better than the settlement.
There was also a decision on adverse possession which I didn't get around to reading. Something about A acquiring Blackacre and granting a life estate to B, who... whoops, sorry, that's one of those nightmare flashbacks I have from my 1st-year property course. Anyway, this involved a dispute over 97/10,000ths of an acre -- I'm not making that up -- so if you went to law school for stuff like that have at it.
So let's see what the courts of appeals were up to...
Chat time. By now, it's a well-established fact that approximately 30% of the people in the AOL teen chat rooms are dirty old men trying to hit on young girls. The problem, at least for that 30%, is that the other 70% are FBI agents or cops posing as young girls. My favorite was a case from a couple of years ago, where some rummy showed up in Cincinnati for his hot "date," who turned out to be a 36-year-old detective. He told the cops that he was on his way to Lima for rendezvous with another Lolita, but it turns out that was a detective, too.
In addition to the Ohio statute on importuning, there's a Federal statute which prohibits much the same thing: trying to entice minors into having sex. Courtesy of SL&P, I came across a decision on the Federal statute, where the 7th Circuit reversed a conviction in which the defendant had engaged in numerous Internet chats with "Abigail" about sex, culminating in a discussion of him traveling to meet her in a few weeks. No arrangements were ever made, at which point the defendant was arrested. The appellate court threw it out, finding that the defendant hadn't taken any substantial steps to complete the crime, and thus wasn't guilty of an attempt. Good discussion of some stuff on what constitutes an "attempt," which some of us remember from law school, and some of us not so much.
Most Ohio cases on the state statute indicate it's the normal policy to arrest the defendant when he shows up at the arranged meeting. But not necessarily; this 2nd District decision holds that "the harm is in the asking," and it's not necessary to show that any meeting arrangements were ever made.
The Medellin Execution. Back in April, I wrote a post about Jose Medellin, a defendant on Texas' death row. The case had gone to the US Supreme Court several times, most recently on the question of whether President Bush could order the State of Texas to grant a rehearing to Medellin, a Mexican national, on his contention that he'd been denied his rights to consular access under the Vienna Convention on Consular Relations. The Supreme Court held that Bush couldn't, and on Tuesday night Medellin was executed.
If you've been reading this blog regularly, you know I'm an opponent of the death penalty. I don't think it's a deterrent, I don't think it's applied fairly, I think there's too much chance of a mistake, and I don't think the state should be in the business of killing people. But you know what? When I think about what Medellin did -- repeatedly raping 14- and 16-year-old girls, and then strangling them with their own shoelaces -- I have a hard time getting worked up about his execution.
Police are investigating whether a package of marijuana addressed to the wife of a Prince George's County mayor was really intended to be intercepted by a deliveryman as part of a drug smuggling scheme.
A Prince George's Sheriff's Office SWAT team and county police narcotics officers burst into the house of Berwyn Heights Mayor Cheye Calvo on Tuesday evening after they saw Calvo take the package inside. In the course of the raid, they shot and killed his two black Labrador retrievers. . .
Calvo has said that sheriff's deputies shot his 7-year-old dog, Payton, near the front door and then his 4-year-old dog, Chase, as the dog ran into a back room. He has said that he and his mother-in-law were handcuffed and interrogated for hours while surrounded by the carcasses and blood of his pets.
The police now believe that Calvo wasn't the intended recipient of the package:
According to law enforcement sources, police believe it is possible that a deliveryman intended to collect the box from Calvo's porch, either before the package was signed for or after the mayor or his wife reported that it wasn't theirs.
Bullshit plea deal of the week. Courtesy of one of my readers, this story:
A New York man who pleaded guilty to murder in Oregon in exchange for buckets of fried chicken will get calzones and pizza to go with his life sentence.
Durham agreed to plead guilty to murder -- but only if he could get a break from jail food. The judge agreed and granted Durham a feast of KFC chicken, Popeye's chicken, mashed potatoes, coleslaw, carrot cake and ice cream.
Having eaten there once, I think I could make a fairly convincing argument on appeal that a plea given in return for Popeyes chicken does not meet the "knowing, intelligent, and voluntary" requirement. At least the "intelligent" part.
Back in March, the 8th District decided State v. Casalicchio, which involved the question of whether a sentence imposed without advising a defendant of post-release controls was void, or merely voidable. Nine months earlier, the Supreme Court had held in State v. Bezak that it made the sentence void. A few months after that, though, the Supreme Court backed off its earlier pronouncement in State v. Foster that sentences handed down pursuant to the sentencing scheme found unconstitutional by Foster were void, and in State v. Payne declared that those sentences were merely voidable.
Got that so far? The 8th District thought it did, deciding in Casalicchio that Payne implicitly overruled Bezak, and that PRC-less sentences were merely voidable. The opinion in Casalicchio wasn't exactly politic, finding that "the reasoning in Bezak was flawed," something that court of appeals judges don't normally say about superior courts. Sure enough, not a week later the Supreme Court handed down State v. Simpkins, in which they specifically upheld Bezak's finding about void sentences. Suitably chastened, the 8th District reconsidered and issued a new decision in Casalicchio that was in accord with the Supreme Court's void/voidable distinction.
Last week, the 8th District had another chance to "overrule" a Supreme Court decision. They blinked. They probably shouldn't have.
The facts of the case in State v. Chambliss were simply bizarre. The three defendants were charged with major drug offenses, but the state was reluctant to disclose its informant, so it negotiated a deal in which the defendants would plead to lesser offenses, the state would recommend community control sanctions, and if the court wasn't agreeable, the state would consent to a withdrawal of the pleas. The pleas were taken in front of a different judge, and when the regular judge returned for sentencing, he balked at the deal. The pleas were withdrawn, and the case was set for trial on April 8, 2008, twelve days later.
On the day of trial, one of the attorneys pointed out that the search warrants and affidavits in the case had been sealed because of concerns over disclosing the informant's identity, and that if the affidavits weren't unsealed so that he could determine whether a motion to suppress was warranted, he couldn't serve effectively as counsel. At which point, things went all to hell: the judge removed the attorneys, all of whom had been retained, ordered the defendants to retain new attorneys within ten days, and remanded the defendants to jail.
The appellate court vacated the remand three days later, and on expedited appeal had little trouble finding that the remand was improper, endorsing the 6th District's view that
Where the trial court setting the original bail has considered all the required factors in determining the amount of bail, and there is no showing of any changed circumstances of the accused or his surroundings, the bond as set must continue as a matter of right.
The only remaining issue was the removal of the defendants' attorneys, but the court punted on that issue, following the Ohio Supreme Court's 1994 decision in State ex rel. Keenan v. Calabrese, in which that court held that removal of counsel in a criminal case wasn't a final appealable order.
As the 8th District recognized, though, Keenan wasn't the last word on the issue. In 2006, the US Supreme Court decided US v. Gonzalez-Lopez, in which the defendant's retained attorney had been refused pro hac vice status. The court of appeals found the denial improper and reversed, and the government appealed, arguing that the defendant had to show that the denial of that particular counsel prejudiced him. Not so, said the Supremes in an opinion by Scalia: the right to counsel of one's choice was so fundamental that denial was a "structural error" mandating automatic reversal.
The Chambliss court was aware of Gonzalez-Lopez. Indeed, it virtually taunted the state for its position that the order dismissing the attorneys wasn't final:
By asserting that this is not a "final appealable order," the State is left in a position where, should they obtain a conviction at trial, said conviction would be subject to automatic reversal. Likewise, appellants could not possibly sustain a loss -- they either "win" the case, or it is reversed. We can conceive of no greater waste of court time and resources; not to mention the cost to appellants of having to pay two sets of retained attorneys for perhaps two trials.
Nonetheless, the court felt constrained to follow Keenan.
Which is too bad. Keenan didn't make much sense at the time, especially in light of a decision ten years before that by the Ohio Supreme Court holding that the denial of counsel in a civil case -- where, as the Chambliss court noted, there's no 6th Amendment right involved -- was a final appealable order. And whatever sense Keenan did make was eviscerated by Gonzalez-Lopez.
I guess the 8th District figured that reversing the Ohio Supreme Court once in a year was enough.
The Jon Benet Ramsey case took its latest turn with the news a couple of weeks ago that new DNA tests had exclused the Ramsey family members as suspects in the child's death. This, of course, was a case that was supposed to have been solved a couple years back when John Mark Karr confessed to having killed her, only to have the charges dropped several months later when Karr's DNA didn't match that left at the murder scene.
Karr's is hardly the only example of a false confession; the Innocence Project found that "in more than 25% of DNA exoneration cases, innocent defendants made incriminating statements, delivered outright confessions or pled guilty." There are actually three categories of false confessions, and Karr is the classic example of the first: "voluntary" confessions, made by people who are mentally off-kilter or looking to curry fame, or both. Karr's case is hardly unprecedented; over 200 people "confessed" to having kidnapped the Lindberg baby back in the 1930's.
Much more prevalent, though, is the "compliant" false confession, where people wind up confessing simply to get out of their current situation. Back in 1989, for example, a woman was raped in Central Park in New York City while out jogging. The police quickly leapt into action, and within a few days had rounded up five juveniles, who, after intensive interrogation, ranging in time from 13 to 30 hours, gave videotaped confessions to the crime. They repudiated the confessions shortly thereafter, but that didn't stop them from being convicted. Or from spending 13 years in prison before they were released because another man confessed to the crime, and his DNA actually matched that found at the scene.
Then there's the "internalized" false confession, in which a psychologically vulnerable defendant can actually be made to believe that he committed the crime the police are interrogating him about. Perhaps the most notable case here is that of Paul Ingram, a deputy sheriff in Washington State who, after extensive interrogation including hypnosis, "confessed" to ritualistic sexual abuse of his daughters and spent fifteen years in prison for something that virtually everybody now agrees never happened.
One might have thought that the Miranda decision would have ended this, but despite the hysteria in law enforcement circles when the decision came down, it's had virtually no effect on confession rates; a study in 1996 showed that 76% of people interrogated by the police waived their Miranda rights, and 62% gave a full confession. Much of the reason is that police interrogation has become far more sophisticated, as indicated by the "nine steps" of interrogation in Inbau and Reid's classic text, Criminal Interrogations and Confessions.
While false confessions certainly aren't the intent of improved interrogation techniques, the fact that they're sometimes the result is causing increasing concern. One focus has been on recording the interrogation process, and the Supreme Courts of Alaska and Minnesota have both held that such a procedure is required, at least where practicable, under their state constitutions' due process clause. Other states, like Illinois, require by law that all homicide interrogations be recorded, and police departments in places like Broward County, Florida, and Santa Clara, California, have adopted rules requiring that.
The chances of this happening in Ohio are about the same as the chances of the legislature declaring September Oral Sex Month. While there are several cases out of the 2nd District which take a dim view of the deception commonly employed by police in interrogations -- like this one, throwing out the conviction of a 17-year-old who'd been told he could get the death penalty -- the attitude of most Ohio courts is typified by this 4th District decision holding that "deception on the part of the police in no way vitiates the voluntary nature of an otherwise valid statement." Ohio courts have even expressed reluctance to consider expert testimony as to the general coerciveness of police interrogations, as the 9th District did in State v. Wooden a few weeks ago, affirming the trial court's exclusion of the defense expert.
So what's a poor boy -- i.e., defense attorney -- to do? You can ransack the Alaska and Minnesota decisions above for some good language, either to try to establish a due process right to recorded conversations (so call me a dreamer) or at least to argue that Wooden's wrong and you should be able to call expert testimony on the interrogation process. At the very least, you can do a little reading about it. The Innocence Project is one place to start, and there's other stuff floating around on the web, including this in-depth dissertation on the subject.
Keep in mind that while the voluntariness of a confession is an issue of law for the court, it's also an issue of fact for the jury: if the jury determines that the confession was obtained in a manner which casts doubt on its credibility, it can disregard it. Knowing something about how confessions are done -- and how they can go wrong -- may give you a leg up in cross-examination.
The only other Supreme Court decision besides Colon II, which I discussed yesterday, was State v. Clark, which involved the issue of whether a guilty plea was voided by the trial judge's giving incorrect information about post-release controls: the judge had told the the defendant, who'd pled to aggravated murder, that he'd have to do five years of post-release control, when in fact he'd be on lifetime parole after release from prison, assuming he was released at all. The Supreme Court reversed the conviction and remanded the case back to the 11th Circuit to determine whether the defendant could show prejudice, i.e., that he wouldn't have entered the plea if he'd been given the correct information.
The court tackled this issue earlier this year in State v. Sarkozy, which I discussed here, and the very short version of the two cases is that if the trial judge fails to give information about PRC at the plea, the plea gets vacated; if she merely fails to give correct information about PRC, the defendant has to show prejudice in order to have the plea vacated.
On to the courts of appeals...
I know, it's the day for the Case Update, but we'll have to save that for tomorrow. While I was chillin', the Ohio Supreme Court took another look at its decision a few months back in State v. Colon, in which it reversed a conviction because neither the indictment nor the jury instructions specified a mens rea requirement the defendant's alleged crime of aggravated robbery. I discussed the case here, and found the opinion problematic in several respects, particularly its holding that the failure to specify the intent element was a "structural error."
My reaction paled in comparison to that of the various county prosecutors, whose response bordered on the apoplectic: an emergency meeting was held in Columbus, resulting in a decision to ask the Court to reconsider the case. The Ashtabula County Prosecutor was so distressed he felt compelled to write a letter to Judge Grendell of the 11th District telling her that "any support that the 11th District could provide would be greatly appreciated." His plea went unrequited; a check of the docket for Colon fails to reveal the filing of an amicus brief by the 11th District on behalf of the prosecutors.
The Supreme Court doesn't grant motions to reconsider lightly, although it's not unprecedented. (The most famous example was probably last year's decision in State ex rel. Gross v. Industrial Commission, discussed here, in which the court had denied workers comp benefits to an employee by a 5-2 vote, then turned around a few months later and reversed itself by an identical 5-2 margin.) Last Thursday, the court decided that Colon warranted some additional treatment.
The prosecutors' angst over the original decision was primarily prompted by the court's declaration that the failure to include the mens rea requirement in the indictment was a "structural" error, surviving despite a failure of the defense to object at trial. This created the possibility that legions of defendants whose convictions had long since been finalized could file delayed appeals or petitions for post-conviction relief seeking to reopen their cases. In Thursday's decision, the court slammed that door shut:
A new judicial ruling may be applied only to cases that are pending on the announcement date. The new judicial ruling may not be applied retroactively to a conviction that has become final, i.e., where the accused has exhausted all of his appellate remedies.
Therefore, the rule announced in Colon I is prospective in nature and applies only to those cases pending on the date Colon I was announced.
Indeed, the court seemed to back off the "structural error" analysis. It was not merely the defective indictment which created the problem, but the fact that "multiple errors at the trial follow the defective indictment": both sides treated the "serious physical harm" element as being one of strict liability, and the court's jury instructions made no mention of an intent element, either.
Whether this is good law is another matter. Normally, structural errors are automatic grounds for reversal because they so infect the trial that any confidence in the outcome is undermined. Denial of the right to counsel, for example, is always structural: the participation of counsel is so fundamental that it's instrinsic to a fair outcome, and it's impossible to measure the denial under a "harmless error" analysis. Here, as Justice O'Donnell points out in dissent, the majority seems to be suggesting that something can become structural error depending upon what happens later in the trial. Nonetheless, the court upheld its initial result, by the same 4-3 result, each justice aligned the same way, as in Colon I.
So what's the net result of Colon II? Basically, the effective neutering of Colon I. The majority falls all over itself stressing the "unique" facts of the case, and in case anyone missed the message, concludes the opinion by emphasizing "that the syllabus in Colon I is confined to the facts in that case." Bottom line: unless you have a situation precisely on point with Colon -- the indictment fails to include a mens rea element, both parties proceed through the trial as if there isn't one, and the court doesn't include one in its instructions to the jury -- Colon doesn't apply. Given that the Ohio Judicial Conference has already issued revised jury instructions to make them Colon-compliant, the case is pretty much relegated to the status of a dead letter.
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