September 2008 Archives
I practice in Cuyahoga County. A fair amount of my readership is here. The 8th District Court of Appeals hands down more decisions than any other appellate district in the state. Hence, the new feature here: Tuesday's rundown of decisions from the Cuyahoga County Court of Appeals.
I've had my differences with the 8th, particularly on hearsay/Crawford and allied offense issues, but one area they're consistently good on is 4th Amendment law. That continues with in State v. Crenshaw. The short version: the cops investigate a complaint of drug activity out of a particular house. They go to the backyard, which is fenced in, smell marijuana, and climb over the fence with guns drawn, ordering the ten or so people there for a barbecue to put their hands up. The homeowner "consented" to a search of the house. The net result of all this? A pipe containing cocaine residue.
The search got tossed quicker than a Taco Bell burrito after eight beers, and the 8th easily affirmed, noting first that the backyard was within the "curtilage," because it was fenced in, and thus deserved 4th Amendment protection. The state argued that the search was "consensual," although that applies to an encounter in a public place, not a backyard. The state also argued that the smell of burning marijuana gave the police probable cause; the opinion notes that while that was true, it didn't relieve them of the requirement of obtaining a warrant, in the absence of any showing that the evidence was about to be destroyed.
Whether the court would have had to go through all this is another question. The validity of the seizure of the crack pipe depended upon the validity of Crenshaw's consent, and whatever adjective might be applied to a consent given after a half-dozen armed police officers crawl over your backyard fence and point their guns at you, "voluntary" is not one of them.
Back in May, it looked like the Supreme Court's decision in State v. Colon, reversing an aggravated robbery conviction because the indictment didn't include a mens rea requirement, would be The Next Big Thing. Then the Supreme Court reconsidered and, doing its best Emily Litella impression, said, "Never mind," as I explained back here. The 8th wrestled with that in a few decisions last week. In State v. Wade it decided that failure to include a mens rea requirement wasn't fatal to an aggravated robbery charge under the having a deadly weapon subsection, because the weapon element didn't require a specific mental state. In State v. Rogers, though, the court followed Colon I in holding that the failure of the indictment to include a mens rea under the "causing physical harm" subsection did require vacating the conviction.
Whether that's the right answer is indeterminable, because Colon II is such a mess. That decision emphasized that the facts in the case showed the failure to include a mens rea "permeated" the trial, thus requiring a structural error analysis, while apparently saying that if it didn't permeate the trial, it could be considered under a plain error analysis, but only on even-numbered days of the week... Well, it wasn't quite that bad, but you get the idea. In Rogers, it didn't really matter: the defendant had also been convicted of three counts of agg robb under the deadly weapon subsection, and a conviction under the serious harm portion would probably have merged with the others anyway.
State v. Robinson teaches a very simple lesson for trial judges: if you want to deny a motion to withdraw a guilty plea, just hold a hearing and deny it. But if you deny it without holding a hearing, you're very probably going to get reversed.
On the other hand, while RC 2929.18 also requires a hearing before a court may order restitution, that's not always necessary, according to State v. Jarrett. There's a due process component to a restitution order, and there has to be some evidence of economic loss, as the court concluded last year in State v. Labghaly. In that case, the defendant had been caught with 695 pirated copies of the movie Rebound, and the court ordered him to pay $13,655. That was nearly 1% of the entire box office garnered by the movie, a rip-off of the Bad News Bears which got a 14% Tomato-Meter rating and earned such reviews as "an underdog sports saga that skips nary a cliche on its nearly laughless journey." The court reversed the restitution order.
Not so in Jarrett; the agreement to pay restitution had been fully discussed at the plea hearing, and the defendant had agreed to pay it as part of the plea. The amount had been calculated by the probation department, and was included in the presentence report, which defense counsel conceded was "substantially correct" at the sentencing. That's pretty much the end of that; the statute requires a hearing only if "the offender, victim, or survivor disputes the amount."
Tomorrow I'll have something on the oral argument in State v. Winn, which represents the latest Ohio Supreme Court foray into allied sentences. And I'll probably figure something else to write about on Thursday and Friday. See you then.
Not much on the Ohio Supreme Court's agenda this week. Perhaps the most significant decision was In re Andrew. Andrew had been adjudicated a delinquent and shipped off to the Department of Youth Services. At age 17, he was cited as a parole violator, but the hearing didn't take place until after he'd turned 18. The trial and appellate courts held that Andrew was an adult by that time, and therefore his waiver of counsel was valid. The Supreme Court reversed that, finding that the statute provides that the juvenile court has jurisdiction "over any person who is adjudicated an unruly child prior to attaining eighteen years of age until the person attains twenty-one years of age." Thus, Andrew's waiver of counsel had to comply with those for a juvenile -- i.e., either his parent, guardian, or custodian had to be there, or he had to have consulted with an attorney.
Andrew is a 4-3 decision, and frankly, the dissenters have a better argument that the statute refers only to whether the juvenile court has jurisdiction, not over the procedure it must apply in determining a valid waiver of counsel.
The other notable decision was State ex rel. Upton v. Indus. Comm., in which the court held that a trucker who was fired for being involved in an accident was still entitled to temporary total disability benefits for the injuries he sustained in the accident. This is in keeping with the court's decision last year in State ex rel. Gross v. Indus. Comm., which I discussed at the bottom of this post back then.
There were a couple of disciplinary cases, too, which tell us that skipping out on clients isn't a good idea (to say nothing of representing an estate in a wrongful death case against your own brother), nor is running a company that engages in mortgage fraud. As if we didn't know.
As for the courts of appeals...
My store of knowledge grows. What with only having a law degree and 33 years of practice, it's a damn good thing I have clients who can be counted on to tell me what the law is. Earlier this week, I had a pretrial for one client charged with drug possession, and learned from him that one cannot be convicted of cocaine possession based solely upon residue, an Ohio Supreme Court case and an 8th District case to the contrary notwithstanding.
Then on Wednesday I was supposed to have a trial on a domestic violence case, in which my client had allegedly punched his mother. (There's a case with jury appeal.) He confidently assured me that the witnesses -- his mother, sister, and brother-in-law -- wouldn't show up. "Tyrone, I've got good news and bad news for you," I said when I came out to see him an hour later. "The good news is that you're right, they didn't show up. The bad news is that the judge issued a bench warrant for them." We engaged in a healthy discussion of whether witnesses could be compelled to testify, his side of the argument revealing an inability to fully comprehend the meaning of a subpoena and that the Fifth Amendment's refusal to testify was limited to not incriminating oneself, not others.
The next day he calls me up and tells me that his cousin, who works at the Federal building, told him that the witnesses couldn't be forced to testify. "And the Ohio courts have to listen to the Federal courts, don't they?" he pressed. This is what it's come to, I told myself: I've got a client who's invoking the Constitution's Supremacy Clause based upon his cousin's working at the Federal building.
Another chapter for my autobiography.
What a tangled web we weave. William Farrell's autobiography is going to be much more interesting than mine. He was one of the four lawyers disciplined by the Ohio Supreme Court last week. He was a member of a small firm practicing work comp and social security disability, and although he was content in his practice, it didn't really provide him with the income to sustain the affluent lifestyle he and his wife had adopted. His wife wanted to move to a smaller house, but he promised her that instead he'd find a more lucrative job. Which he did: over the next year, he showed her letters for two job offers he'd received, one for $150,000 and one for $168,000.
He didn't actually take the jobs, because there weren't actually any jobs; he'd made up the letters. The couple started running out of money a while later, so they took out an additional line of credit. Well, actually, they didn't, he did -- by forging her signature on a power of attorney. Then the wife stumbled upon the bank statement and questioned him about it. That's where the train started to go off the rails:
To quell her suspicions, respondent fabricated three more letters, all dated May 5, 2006, and purportedly written on Fifth Third letterhead. The first letter purported to be from the bank's executive vice-president of retail banking operations; the second purported to be from the bank's general counsel, executive vice-president, and corporate secretary; and the third purported to be from the bank's president and chief executive. Respondent addressed each letter to himself and his wife, and in each supposedly redressed some issue with one or another of the couple's bank accounts. The letters, all at least one page long, specified in great detail how the $ 75,000 credit limit had resulted from a "counterfeit" equity line of credit and how the discrepancies had been or were being remedied.
Couldn't get any funkier than that, right? Wrong. To make sure there wasn't a repeat of this, Farrell stopped mail delivery to the house. When his wife noticed they weren't getting any mail, "respondent fabricated another letter, this one purporting to be from the United States Postal Service on post office letterhead. With this letter, dated May 19, 2006, an assistant director of internal investigations supposedly assured the couple that their mail had not been held or diverted in the last year."
Man, that's an awful lot of work. Reminds me of another disciplinary decision from about twenty years ago, where a lawyer was handling a case which got thrown out of court on summary judgment, and the lawyer never told the client about it. To keep the client believing that the suit was still pending, the lawyer made up interrogatories, supposedly from the other side, then had his client come in and "answer" them.
Free (sort of) speech. Constitution Day was last week (September 17, to be exact), and I missed it, and feel kinda bad about that, so I thought I'd make up for it by posting a link to a recent poll done by the First Amendment Center on American attitudes toward free speech. Here's the survey; make of it what you will. There's plenty of reason for concern: 40% can't name a single right that the 1st Amendment protects, 42% disagree that people should be say things offensive to religious groups (and 54% disagree that they should be able to say things offensive to racial groups). Probably the weirdest one is that 38% agree that "the government should be allowed to require broadcasters to report a specified amount of 'positive' news in return for the granting of licenses to use the public airwaves."
On the other hand, 59% of the public strongly disagrees with the idea that the First Amendment goes too far (up from 45% a decade ago), and in that same time, support for an amendment prohibiting flag burning has gone from 49-49 to 57-40 against. A mixed bag indeed.
See you on Monday.
'Tis the season... for oral arguments, anyway. The US Supreme Court calendar gets under way on October 6, but today we'll look at the lineup of Ohio Supreme Court cases which are scheduled for argument next Tuesday and Wednesday.
Fletcher v. University Hospitals. (Links are to the lower court decisions). This case involves the failure of a medical malpractice plaintiff to attach the Civil Rule 10(D)(2) affidavit of merit to her complaint. The defendant filed a motion to dismiss for failure to state a claim under 12(B)(6), but the 8th District decided that the appropriate procedure was for the defendant to file a motion for more definite statement. The case is pretty much one of first impression, but the 8th District hasn't had a good track record on civil cases getting affirmed recently, so I wouldn't be surprised to see the Supreme Court take a stricter approach.
State v. Cefantanti. This involves Ohio's speedy trial rights for prisoners statute, RC 2941.401, which I discussed here. The statute specifies that a prisoner has to be brought to trial within 180 days after providing notice to the prosecutor and court that he is available for trial. Here, the defendant's attorney sent certified letters to the prosecutor and court telling them Cenfantanti was in a Federal prison, and demanding a trial. The trial court noted that he was "unavailable for prosecution," and took no action. Cefantanti didn't comply with the other requirements of the statute: a certificate of the warden stating the term of commitment, time served, etc. The 5th District reversed, saying that he'd done all he was could do, and it was up to the state to notify the warden when it got Cenfantanti's letter. There's an additional issue of whether anybody actually received the letters; there's no green card from the post office indicating receipt. The Supreme Court might use that to evade the issue, but if it does confront it, I'd expect an affirmance.
State v. Winn. Another biggie on allied offenses; the 2nd District had held that aggravated robbery and kidnapping convictions merged because the victim had been moved only a few feet. The state's taking a rather hard-line position: aggravated robbery and kidnapping never merge. I'll have more on this after the oral argument.
Middleburg Heights v. Quinones. In many traffic cases, you'll have a client who's charged with multiple offenses: DUI, speeding, improper lane change, not having a seat belt. You work out a plea to the DUI, with the other cases dismissed. Except that your client gets hit for court costs on all four cases. At $80+ a pop, that adds a lot of coin to municipal coffers. The 8th District put a stop to that last year, holding that the court could impose costs for only one offense, and as I pointed out when I blogged about the case, the caterwauling from municipalities could be heard from one end of the state to the other. No idea how this one is going to turn out.
By the way, a very good way to keep track of the criminal cases pending before the Ohio Supreme Court is through the Ohio Public Defender website. Steve Hardwick, who's one of the head guys on appeals down there, does a super job of keeping on top of what's happening. You can access his list here. It's a little dicier finding it on the web site; it's the first link listed under "Recent Developments," when you scroll down a bit.
If sovereign immunity is the Rubik's Cube of Ohio law, home rule isn't far behind. Ohio's concept of home rule is a legal doctrine that only a bar examiner could love: it requires a three-step analysis, the second step of which involves a four-part test. The court waded back into this thicket last week in Ohioans for Concealed Carry, Inc. v. City of Clyde.
The case involved Ohio's "concealed-carry" law, which permits Ohioans to carry guns in various places. One of those places, the City of Cyde decided, was not in its parks. That presented the issue rather clearly: did the statute override the city's ordinance, or was the ordinance a valid exercise of the city's home-rule power?
Fortunately, this wasn't one of those cases where the three-step/four-part analysis is going to get a workout. The first step is whether the issue "involves an exercise of local self-government or an exercise of local police power." Guns = police power. The next step involves the four-part test, but the gist of that is to determine whether the legislature intended the statute to be a "general" law. That issue was pretty much put to bed by RC 9.68, which specifically states the intent to "provide uniform laws throughout the state regulating the ownership, possession, purchase, other acquisition, transport, storage, carrying, sale, or other transfer of firearms." All that was left was the third step, determining whether the ordinance was in conflict with the statute. That's fairly apparent: the concealed carry statute, 2923.126(A), specifically permits a permit holder to "carry a concealed handgun anywhere in this state," subject to the exceptions contained in the statute, such as bars and courthouses. The ordinance ran counter to that.
Somewhat surprisingly, the case wound up as a 4-3 decision. One of the parts of that four-part test is that the law has to be uniform throughout the state, and the dissenters argued that the regulations weren't uniform because private property owners could ban guns while public ones couldn't. That argument's a stretch: it's hard to argue that the statute's not a general law because it doesn't apply to private landowners, when the General Assembly had no power to apply it to private landowners.
This is all a prelude to the coming showdown over municipal employee residency laws. Many cities, including Cleveland, require employees to reside in the city. Back in 2006, the Ohio legislature passed what became RC 9.481, which banned the practice of doing so. Since that time, the 3rd District, the 6th District, the 8th District, and the 9th District have all struck the statute down as violating home rule, while the 2nd District and 11th District have upheld it. The Supreme Court's accepted review of the 3rd and 9th District cases and consolidated them; oral argument will be later this year or early next.
Actually, the outcome may ride on another little-known Ohio constitutional provision. Article II, Section 34 of the Ohio Constitution gives the legislature the right to pass laws "fixing and regulating the hours of labor, establishing a minimum wage, and providing for the comfort, health, safety and general welfare of all employes," and further provides that it overrides home rule. The 2nd and 11th Districts held that residency requirements were laws affecting the "comfort, health, safety and general welfare" of employees, and thus RC 9.481 fell within the ambit of Section 34.
That's a bit of a stretch, but I wouldn't want to try to predict the outcome. Despite all the talk about home rule and other constitutional provisions, a lot of this might depend on a gut level evaluation of whether it's fair to require people to live in a particular place in order to work a particular job. As in many cases, once a judge works it out on that level, finding the supporting law to justify the decision is fairly easy.
At any rate, whatever the Supreme Court decides, it won't have the benefit of the wisdom of the City of Cleveland's law department. Last week the Supreme Court ordered the city's amicus brief stricken because it was filed a day late.
In criminal cases, the 6th District looks at the applicability of State v. Colon (I and II, discussed here), and essentially decides that the failure of an indictment to include a mens rea requirement is not a structural error if the defendant pleads guilty. The 8th District holds that the prosecutor's reading from a file in a sex offender hearing does not constitute "evidence," but still upholds the trial court's finding on the basis of other evidence. It also reverses a juvenile court's delinquency finding because the court failed to record the dispositional hearing. The defendant had asked for expungement of an aggravated assault conviction, and the prosecutor had objected that the crime wasn't expungeable because it was a crime of violence, but withdrew that objection at the hearing; the 10th District says it doesn't matter, and reverses the grant, holding that the trial court lacked "jurisdiction," which couldn't be waived. The 3rd District holds that a defendant's right to be present wasn't violated, where he appeared at a hearing on his motion to withdraw his guilty plea by video from prison.
On the civil side, there's a good case from the 8th District on when a tenant is entitled to equitable relief from the consequences of a failure to properly renew a commercial lease. And the court also reverses a summary judgment and orders dismissal, holding that personal jurisdiction doesn't exist where a Minnesota homeowner mails payments on a home equity line to a bank in Ohio. The 9th District rules that a plaintiff in a dog-bite case can't be compelled to choose between pursuing a statutory action and a common law action, but can pursue both. The 3rd District holds that, in order to be awarded sanctions for a discovery violation, the moving party has to show that he actually paid or is obligated to pay attorneys fees.
Last, I've bitched about attorneys filing Anders briefs, but if you want to see one done right, check out the 6th District's decision State v. McIntosh. The defendant faced charges which could have landed her in prison for 33 years. She pled out to two third-degree felonies, changed her mind and filed a motion to withdraw the plea, then at the motion hearing changed her mind again and agreed to do the plea. Her attorney obviously did a diligent job researching the law before filing his Anders brief, presenting seven potential assignments of error. Instead of spending a paragraph or two noting that none had merit and affirming, the court examined each one in detail. The result was the same, but you come away from the case believing that the defendant got every shot she was entitled to.
Guess that'll teach me to keep my mouth shut. After bemoaning the lack of Ohio Supreme Court decisions for the past month or so, I sit down to do the weekly case update and find no fewer than seventeen of the little suckers. We'll take a look at those today, and then do the courts of appeals cases tomorrow.
There were the usual bevy of disciplinary decisions, giving the usual cautions: don't put money in your IOLTA account to shield it from creditors, be careful about accepting referrals from companies regarding foreclosures, and, if you're a judge, don't impose contempt citations without any rudiments of due process.
There were a number of post-sentencing decisions regarding journal entries, in which the court reiterated its decision in State v. Baker (brief discussion here) about what a sentencing entry must include: a simple "has been convicted" doesn't cut it, but saying that guilty verdicts were returned, without specifying what the initial plea was, does. And, even if the journal entry was incorrect, you have to ask the judge to revise it before filing for any extraordinary writs.
There were three other criminal decisions of note, one of which, on allied offenses, I discussed last Thursday. In other cases, the court held in State v. Mays that a trooper's observation of a driver's drifting over the right line on the roadway twice in a mile-and-a-half span was sufficient "reasonable cause" for a traffic stop, even in the absence of any other indication of improper operation. And in State v. Davis, the defendant had been charged with fourth-degree drug trafficking, and the trial court had permitted an amendment of the indictment during trial to increase the quantity of the drugs so as to make the crime a second-degree felony. (Without objection by the defense, interestingly.) The Supreme Court affirmed the 4th District's reversal of the conviction, holding that an indictment can't be amended to change the penalty or degree of an offense.
There was also a significant case on criminal appellate procedure. Appellate Rule 26(B) allows a defendant to seek to reopen an appeal on grounds of ineffective assistance of appellate counsel. The rule has been gutted by the insistence of many appellate districts (including the 8th, with a vengeance) that an appeal to the Supreme Court, even where the court refuses to hear the appeal, bars a 26(B) claim on grounds of res judicata. In State v. Davis (yes, there were two "State v. Davis" decisions last week), the court puts the end to that, holding that the filing of a discretionary appeal with the Supreme Court doesn't create a bar to a merit ruling on a timely-filed 26(B) motion.
In civil cases, the court held that a guardian ad litem has standing to prosecute a motion to terminate parental rights and award permanent custody to a child services agency. In Hutchings v. Childress, it held that a husband who provided home health care to his wife after her automobile accident could recover the fair market value of such care, but couldn't recover the wages he lost as a result of having to take off work to assist his wife.
There was one more significant decision: Ohioans for Concealed Carry v. Clyde, in which the court struck down a municipal ordinance prohibiting the carrying of weapons in a city park, holding that the ordinance was not a valid exercise of home rule. It has some special significance, given the upcoming decisions on how home rule effects the recent statute prohibiting municipalities from requiring their employees to live within the city. I'll cover that one in more detail later this week. And we'll do the courts of appeals cases tomorrow.
It's 11:00 AM. Do you know where your kids are at? I got on the 8th District's case yesterday for some decisions on allied offenses, but one they got indisputably right was Maple Heights v. Ephraim. Thelma Ephraim's 17-year-old son did various bad things one particular night, including fleeing from the police, resisting the attempts of the police to arrest him once they'd caught him, and having a loaded gun in the front pocket of his pants. He was arrested and charged in juvenile court, but Thelma was arrested, too, and charged under the Maple Heights ordinance of "failing to supervise a minor," which was defined as occuring when
the person is the parent, legal guardian, or person with legal responsibility for the safety and welfare of a child under 18 years of age, and the child has committed a status offense, unruly act or a delinquent act that would be a misdemeanor or felony of any degree if committed by an adult.
Note that the ordinance not only imposed strict liability -- the parent need not have even been negligent -- but vicarious liability as well: it didn't require that the offender have committed (or failed to commit) any act at all. In a twist to the Biblical observation, the sins of the child were visited upon the parent. The 8th District's opinion does a thorough job of analyzing Ohio law (correctly concluding that if the law can be disposed of on those grounds, constitutional analysis is unnecessary), and properly determines that while Ohio law permits vicarious liability for corporations under certain circumstances, it doesn't permit it for individuals.
Party of the first part. Rachel Bird and Gideon Codding recently got married in California. Well, actually, they didn't. The marriage license form had spaces for two names, one designated as Party A and the other as Party B. Codding wrote "groom" next to "Party A" and "bride" next to "Party B," and submitted the form. A couple weeks after the ceremony, they got a letter from the County Clerk-Recorder stating that their license was not acceptable because it had been altered. Seems that the "Party A" and "Party B" terms were mandated after the state supreme court ruled same sex-marriage legal. Story here. Interesting commentary here:
Let us not lose sight of the hypocrisy this couple and their theocrat enablers are exhibiting. The less rabid anti-gay bigots often insist that they have nothing against gay couples living together and replicating some aspects marriage through contracts, joint accounts, powers of attorney and so on. It's only the symbolism that comes with the word "marriage," and not the coupling itself, to which they object. To them, marriage transcends licenses and court rulings and is only about solemnifying a religious status; the legal status is incidental. Well, fine: then let Bird and Codding enjoy their "transcendental," "valid in the eyes of God" marriage without a license, the same way they expect gays to. Let them, on principle, forego the over 1,000 benefits that come with legally recognized marriage, the same way they expect gays to. Or is it possible that maybe, just maybe, legal recognition really does matter?
Demon Weed. Last year, 872,721 Americans were arrested for marijuana in the United States. Of those, 97,583 were arrested for buying, selling, trafficking, or manufacture. The remaining 775,138, or 89%, were arrested for possession. Marijuana arrests now account for 47.4% of all arrests for drugs.
This chart pretty much tells the story:
See you on Monday.
Further evidence was offered in the past few weeks that the 8th District is having an awful time deciding how allied offenses work. In fact, one could make a pretty good argument that in the last month, they've yet to get a case right on this issue.
As my legions of faithful readers know, this blog is somewhat Cuyahoga-centric: I practice in Cleveland, so I'm naturally going to devote more attention to what goes on in the courts here, especially the 8th District Court of Appeals. While I was traipsing through the woods of central Ohio last week on my vacation, hunting for moose, only to find that Sarah Palin had apparently shot them all during a campaign stop here, I contented myself with the knowledge that there would be several appellate decisions from Cuyahoga County coming down in the interim which would serve as fodder for several blog posts.
And then I come back to find that the most interesting local legal issue is the impending cage match smackdown bout between County Prosecutor Bill Mason and the Common Pleas judges.
Mamas, don't let your babies grow up to be defense experts in child pornography cases...
Dean Boland parlayed a law degree and being a whizz with computers into a nice gig at the Cuyahoga County prosecutor's office, that combo landing him a place at the trial table of the biggest civil case in the county's history: the office's defense of the attempt of Sam Sheppard's son to win a declaration that his father was innocent of the murder charge levied against him almost a half-century earlier. Boland's job was to manage the computer presentation of the evidence, no mean feat in a case involving 41 days of trial time and myriad witnesses and exhibits.
Boland left for private practice after that, and found an interesting demand for his computer skills: as an expert witness for the defense in child pornography prosecutions. Technology had thrown a real curve at the government in those cases: reverse aging and photo and video editing software made it much more difficult to establish that an actual child was the subject of a particular picture or video clip. That took on added importance in 2002, when the US Supreme Court held in Ashcroft v. Free Speech Coalition that "virtual" child pornography was protected by the First Amendment. Last year in State v. Tooley (discussed here), the Ohio Supreme Court acknowledged that expert testimony could be used in establishing whether the pornographic pictures were real or simulated.
That's where Boland came in: he'd take the government's evidence, play around with it on his computer, and then show a judge or jury how it was impossible to determine whether the image was actual or faked.
This didn't endear Boland to his former employer, who lamented that "Dean has gone over to the dark side." (That complaint has to be taken with a grain of salt, since, as I pointed out a couple of weeks back, the office still gives an award in the name of a former prosecutor who, if hiding exculpatory evidence were an Olympic event, would make Mike Phelps look like a piker.) As it turned out, it also didn't endear him to the Feds.
After Boland had convinced several Ohio judges to toss out cases, as well as a District Court Judge in Oklahoma, he set about prepping his testimony for the defense of Daniel Brady, an Ashtabula man charged with 50-some counts of pandering obscenity involving a minor. He was appointed as the defense expert, and the trial court issued an order directing the prosecutor to turn over a disk of the evidence for Boland to examine. In June of 2005, the prosecutor sent disks off to Boland and to its own expert.
A week or so later, the FBI raided Boland's house and seized his computer, and suddenly Boland faced the prospect of being charged with possession of child pornography -- namely, the disk of pictures he was supposed to examine as an expert.
Brady's attorney filed a motion to dismiss the charges against him, supported by an affidavit from Boland that no one in his right mind would serve as an expert at the risk of Federal prosecution. The trial court agreed and dismissed the charges. Last year the 11th District affirmed.
And last week the Ohio Supreme Court unanimously reversed. Boland's downfall (he handled the case on appeal) was his acknowledgment in oral argument that he could have performed the necessary tests in the prosecutor's office, although he'd asserted the contrary in his brief. He argued that it didn't matter, since the risk of federal prosecution was the same. The court found a provision of the US Code -- 18 USC 3509(m) -- which provides that a trial court must deny a request by the defense to "copy, photograph, duplicate, or otherwise reproduce" any child pornography materials "so long as the Government makes the property or material reasonably available to the defendant." The statute then defines "reasonable availability" as providing "opportunity for inspection, viewing, and examination at a Government facility." Ergo, the court reasoned, the defense expert can look at it there without fear of being prosecuted, and that's all that's necessary.
Of course, that's a crock. Even the statute doesn't allow the defense expert to copy the pictures, do any research on them on the Internet, or engage in any of the steps of preparation, other than viewing, necessary to prepare an effective defense. This gives the government an immense strategic advantage, because its expert doesn't suffer from the same constraints -- if you're wondering whether the state's expert in Brady suffered the same fate as Boland, you should know better. (By the way, no charges were ultimately filed against Boland.)
It's not surprising that the court chose this route as the easiest way out of the mess. as Justice Pfeiffer pointed out in oral argument, the logical extension of the defense argument is that it would be impossible to mount a child pornography prosecution: no expert would ever testify for the defense under the looming threat of federal prosecution, and without an expert the defendant couldn't get a fair trial. There were perhaps several potential outcomes in Brady, but having the Supreme Court announce two months before an election that child pornography prosecutions in Ohio were essentially prohibited wasn't one of them.
I spent the last week getting away from it all by living in a log cabin, which has the added benefit of allowing me to pass it off as my boyhood home in an effort to gain street cred for my forthcoming run for the presidency. As you can see, I wasn't exactly roughing it, but I don't do roughing it; someone asked me if I was going camping, and I gently informed them that if God had intended me to go camping, he wouldn't have invented flush toilets.
I'm somewhat surprised that while traipsing through the woods I didn't bump into Tom Moyer or any of the other Supreme Court justices; the summer slowdown there continued, with decisions in a workers comp case and a criminal case -- the latter of which I'll discuss tomorrow -- plus a smattering of disciplinary decisions unhappily coinciding with the announcement that the Clients' Security Fund shelled out over a quarter of a million dollars to victims of attorney theft in the past year.
The appellate courts were busy, though, handing down 163 decisions in the past fortnight. So let's get to those. Remember, our motto at The Briefcase: We read the cases so you don't have to...
Hurray for the European Court of Human Rights. It has rejected an emergency injunction to block the Large Hadron Collider from turning on on 10 September. It's the latest legal case brought against the LHC by scientists who fear that the world's largest particle accelerator will produce fearsome entities that could destroy the Earth.
We've all had clients who think if they don't win their case, it will be the end of the world, but this sorta takes the cake, I guess...
Judges? What judges? I mentioned yesterday that the crime issue has been missing in action in the current presidential contest. Ed Whelan over at National Review Online mentioned something the other day that I hadn't realized: despite the priority that many Democrats place on upcoming Supreme Court picks, neither Biden or Obama said a word about it in their speeches last week. Whelan credited that to his belief that
Democrats have figured out that the vast center of the American electorate prefers representative government and judicial restraint, on the one hand, to government by judiciary and liberal judicial activism, on the other.
Maybe, maybe not; surprisingly enough, although Republican speakers at their convention this week have certainly not shied away from throwing out red meat to the crowd, references to future Supreme Court picks has been equally absent.
I think the reason for that is that Whelan is on to something, but didn't carry it out far enough. Each party has been successful in convincing moderates that the other party is using "code words" when they talk about Supreme Court appointments. If independents hear Democrats talking about Supreme Court appointments, they translate it as "activist judges." If they hear Republicans talking about Supreme Court appointments, they translate it as "judges who will overrule Roe v. Wade." Both parties know that moderates don't care much for either idea, so they don't talk about Supreme Court appointments, even though one could make a decent argument that what appointments are made in the next four years might have more long-term impact on our country than who is elected president.
Date change. I mentioned on Monday that I'm doing a one-hour seminar this month on US Supreme Court cases for the CCDLA. In case you're planning on attending, the date got moved from the 18th to the 25th, probably to find a new venue to handle the overflow crowds that are anticipated. Maybe they'll take a page from the Democratic convention and have it in Browns Stadium. No doubt.
News articles you better believe I read. From the ABA Journal, with the alluring headline, "Sex With Client’s Mom Requires Waiver":
It may be OK for a lawyer to have sex with a client's mother—if the client approves the relationship in a written waiver of the conflict. But you can't ethically have sex with the client, unless the relationship got started prior to the representation.
That is the gist of a Wisconsin Supreme Court opinion that imposed a six-month suspension on attorney Carlos Gamino, for violating each of these rules—with two different clients. Although the Waukesha lawyer denied both relationships, the court upheld a referee's findings that Gamino had slept with one client, as well as another client's mother. It also sanctioned him for a lack of candor with the tribunal.
I mentioned this to my daughter at dinner the other night, and her response was, "Do you need a waiver to have sex with a client's father?" After a minute's more thought, she said, "What does it mean that with something that weird, the first thing I think of is the sexist angle?"
By the way, as best I can determine, there is no truth to the rumor that the waiver is popularly referred to in Wisconsin as the MILF Affidavit.
I'm on vacation next week, and I'll be back on the 15th. Unless that thing with the Large Hadron Collider doesn't turn out so well.
In keeping with the spirit of the season, I thought I'd pay tribute to one of the the most prominent figures of the 1988 presidential election. The gentlemen on your left is William R. Horton. Back in 1974, he and a couple of other guys robbed a gas station. After the 17-year-old attendant gave them the money, Horton stabbed him 19 times and tossed his body into a trash dumpster. For that, he was convicted and sentenced to life imprisonment without parole.
In 1986, Horton was given a weekend furlough from prison. The furlough system had been set up by previous Republican governors, but a Democrat, Michael Dukakis, had expanded it to those convicts serving sentences for murder. Horton didn't come back from the furlough, eventually turning up in Maryland, where he was arrested after raping a local woman and pistol-whipping her fiance. Dukakis ran for president in 1988, and the "Willie Horton" ad (which you can watch here), detailing the main events and including the picture above, played a key role in his defeat.
That wasn't the only role crime played in the election. During one of the presidential debates, Dukakis was asked, "If your wife were raped and murdered, would you favor the death penalty for her killer?" Dukakis' answer (which you can see here), in which he displayed the same demeanor as if he'd been asked the name of his favorite breakfast cereal, also contributed to the argument that the Democrats were "soft" on crime. That message wasn't lost on the Democrats; it was the last time they would run a presidential candidate who opposed the death penalty. Their next candidate, Bill Clinton, drove the point home by interrupting his campaigning to return to Arkansas to permit the execution of a man so profoundly retarded that he told his prison guards that he'd like to save the desert in his last meal "for later."
That's the dance that was largely played out after 1968, when Richard Nixon ran on a "law and order" platform, and "Impeach Earl Warren" signs dotted rural landscapes. Even in 2000, Al Gore tried to inoculate himself on the crime issue by advocating a constitutional amendment for victim's rights, and proposing that all parolees be tested for drugs twice a week and returned to prison if the test proved positive.
So it's somewhat interesting that crime is virtual non-issue in this election. The McCain campaign has been largely silent about Barack Obama's significant role in reforming Illinois' death penalty while a state senator. Both candidates criticized the Supreme Court's decision striking down the death penalty for child rapists, but the issue hasn't been commented further since the case came down in June. Hillary Clinton tried to get traction on the crime issue by opposing the reduction in the disparity of crack and powder cocaine sentencing laws, but that garnered virtually no attention on the campaign trail then, and none since.
To a certain extent, this reflects the fact that crime rates are substantially reduced from what they were a couple decades back, and also the realization that crime is predominantly a local and state issue. But to a large extent, it also reflects the fact that crime is a minefield for politicians. When we passed the milestone of having the largest prison population in the world a few months back, I can't recall a single political figure commenting on it. Although there is a growing realization of the need for programs helping ex-convicts make the transition from prisons back to their neighborhoods, that's operating well below the political radar.
Whatever the causes, it's unfortunate. Criminal justice is one of the major issues a society must deal with. Death penalty reform deserves a debate. How to handle the drug problem -- legalization or decriminalization of some drugs, or of simple possession -- deserves a debate. Why we have five percent of the world's population but a quarter of its prisoners deserves a debate.
But we're not getting one now, and I'm doubtful that we'll ever have an honest one.
Malik Wilkinson got convicted of escape and received a four-year sentence. He appealed, and his lawyer filed an Anders brief, saying there were no meritorious assignments of error. Wilkinson filed his own pro se brief, and last week, the 2nd District reversed his conviction.
The Magnificent Seven in Columbus have apparently been so busy decorating their Labor Day trees and doing last-minute holiday gift shopping that they haven't had time to write any opinions this past week. Somehow, I don't see a surge of activity coming this next week, either. This will be the last Update for a couple of weeks, since I'm going on vacation next Sunday, so maybe by the time I get back the court will have gotten its freak on, and I'll have something to write about.
By that time, too, their Federal counterpart will be only a couple weeks away from starting up, so we'll have plenty of things to discuss on that front. Speaking of that , and in the Shameless Self-Promotion category, I'll be doing a seminar for the Cuyahoga County Criminal Defense Lawyers Assocation on a review of the major criminal decisions in Supreme Court's 2007 term, and a preview of upcoming cases from the next term. The seminar will be Thursday, September 18, at 6:00 PM at John Q's on Public Square in Cleveland. I've done this sort of thing before, and people tell me it's a toss-up as to which is the best part: the laser light show, or my explanation of why Scalia's opinions have to be translated from the original German.
Meanwhile, in the courts of appeals...
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