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...
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