Tune in to next year’s episode of CSI.  I was talking to a prosecutor last week about the new open discovery proposal here, which would require the state to provide the defense with a “discovery packet” within one week of the first pretrial.  That packet’s supposed to contain all the state’s evidence, including medical records where applicable.  Good luck with that, he said; it takes an average of six weeks to get medical records from a hospital around here.  And that’s with a prosecutor’s subpoena.

Well, it could be worse.  As this story tell us, in Los Angeles they have 7,000 rape kits they haven’t gotten around to testing for DNA yet.  The problem?

Ask any of the more than two dozen criminalists who work in the lab what the holdup is, and you’ll get variations on the same answer: It’s a lot harder to analyze DNA than it looks on TV.

“The public’s perception of it is based on what they see in television or on the news,” Blanton said last week. “That is not going to give you a full understanding of the complexity of it, of the legal requirements you have to follow, of the guidelines and protocols.”

Guess they don’t do the “discovery packet” out there.

I’m not a lawyer, but I play one in court.  It’s time for my annual meeting with my marketing guru about my next advertising pitch.  I don’t think that last year’s “Will sue for food” ever connected, but I think this coming year’s slogan —  ”Reasonable doubt for a reasonable fee” — has some promise.

Good thing I’m not in Louisiana, because that state’s bar has come up with some of the most restrictive rules on lawyer advertising in the country.  They’re scheduled to go into effect on December 1, and, as this article demonstrates, they bar a wide variety of conduct, including using catchy slogans, such as calling your firm the “cash machine legal clinic.” 

Whether these rules will stand up in court is another story.  Standards for legal advertising were considerably relaxed by the Supreme Court decision back in 1977 which held that such advertising was a form of commercial speech, and the Federal Trade Commission has already written a letter to the Louisiana State Bar Association expressing their concern that “the Proposed Rules unnecessarily restrict truthful advertising and may adversely affect prices paid and services received by consumers.”

I’ve got mixed feelings on this.  On the one hand, some lawyer advertising has gone a long way in convincing the general public that we’re a bunch of whores who’ll do anything for money.  On the other hand, advertising has done a lot in making consumers aware of our services, and made fees more competitive. 

The bottom line is, we’re a profession.  You can advertise responsibly.  But if you’re going to advertise like you’re selling used cars, don’t be surprised if people regard you like they regard used car salesmen.

Trick or Treat.  I’ve blogged about residency restrictions for sex offenders in the past, but this ups the ante:

A federal judge in Missouri on Monday temporarily blocked parts of a new state law that requires sexual offenders to remain in their homes on Halloween evening and to avoid any contact with children related to the holiday.

The judge, Carol E. Jackson, of United States District Court in St. Louis, said the law was unclear, questioning language that prohibits “all Halloween-related contact with children” and allows sexual offenders to leave their homes from 5 p.m. to 10:30 p.m. only if they have “just cause.”

See you on Monday.

As you know, I’ve been following the recent proposal by the judges of the Cuyahoga County Common Pleas Court to allow “open discovery” in criminal cases.  (Prior posts here, here, and here; you can read the judges proposal here.)  Today, the Plain Dealer’s Regina Brett wrote another column on the subject, detailing what happened in a local murder case.  The prosecutors had played the normal hide-and-seek with witness statements and police reports, but the trial judge ordered them to turn everything over to the defense.  The result?  When confronted with the overwhelming evidence against her, the defendant, who’d up to that time insisted she was innocent, agreed to plead guilty.  That saved everybody about two weeks of trial time, and the taxpayers about the 50 large that a trial would have cost. 

So what’s the latest?  Comment time for the proposal ended on October 27.  I don’t know about anyone else, but one person did submit a comment:  Cuyahoga County prosecutor Bill Mason sent in a two-page letter, making three basic points. (keep reading…)

While I’ve been critical of the 8th’s confrontation clause jurisprudence, their 4th Amendment cases have been all one could hope for, and that continued last week with State v. Kaine. 

The facts are simple:  The cops had staked out a Walgreen’s parking lot in a “high drug area,” and observed a Ford Explorer pull into the lot, drive past several empty spaces, then park.  Kaine, it turned out, was the driver of the car.  He didn’t get out.  Sometime later (apparently not too long, but the opinion doesn’t say), another car pulled up next to the Explorer; the driver got out, got into the Explorer, then, in copspeak, ”exited that vehicle” after half a minute and got back into his own car.  The police officer didn’t see anything that went on in the Explorer, but his suspicions were mightily aroused, and so when he saw the Explorer drive the wrong way through Walgreen’s “drive-thru” pharmacy, he stopped it. 

The cop had Kaine exit the vehicle and immediately patted him down, then placed him in the cruiser and did a “quick search” of the Explorer, supposedly for weapons.  He came up empty on that score, but found cocaine under the front seat.

Kaine argued that the judge should have granted his motion to suppress, and a panel of the 8th — and a panel which would not be regarded as pro-defendant – agreed.  First, the court reaffirms the cases in which the 8th has held that reasonable suspicion for a stop doesn’t exist unless the police see something which could actually be construed as a drug transaction, such as a hand exchange of some type.  Second, it reiterated that there has to be some evidence that the suspect is armed before a frisk — or, in this case, a “protective search” of the car for weapons – is allowed. 

As I said, on neither of these positions is Kaine an outlier.  In fact, one of the cases it cites, State v. Delagraza, presented facts far more substantial in suggesting drug dealing:  the police observed someone flagging down cars and approaching them, and on one occasion lean into the car and “did what appeared to be some sort of transaction between himself and the occupants of the auto.”  That still wasn’t sufficient to justify a stop of a subsequent car, where there was no such evidence of an exchange. 

So there you have it.  In the 8th District, at least, a bright-line rule:  if the police don’t see something which could reasonably be interpreted as a transfer of drugs, they don’t have a basis for an investigative stop.

On the other side of bright-line rules, you have the 2nd District’s decision last week in State v. Schneider.  Yes, the search was struck down, on the ground that the officers had no basis for a stop.  But the court reaffirms its holding that, in cases involving drug trafficking, “the right to frisk is virtually automatic when individuals are suspected of committing a crime, like drug trafficking, for which they are likely to be armed.”  As I’ve mentioned in the past, that’s not the law in the 8th, despite the above quote being from an Ohio Supreme Court case. 

As I mentioned yesterday, there are times when clarity in the law may provide a superior benefit to reaching the correct result in a particular case.  That is especially true in search and seizure cases:  police officers have to make split-second decisions, and the more hard and fast rules, the better.  I’m a little more concerned with the result in Schneider, since the link between drugs and guns is much more attenuated than many believe, at least in terms of street dealing; in State v. Jones, for example, the 8th threw out a frisk of two suspects stopped for trying to flag down cars, noting that the officer acknowledged that of the several hundred drug arrests he’d made, only “five or six” turned up weapons.

Twenty-four cases last week, and at least a partial reversal in one-third of them.

I’ve chided the 8th before for its mishandling of Crawford and hearsay, but all is forgiven:  in State v. Rufus, the court nails it.  Short version:  Husband and wife get into a fight, wife claims husband started it, policeman says he interviewed couple’s 8-year-old child and child backs up mom’s story.  The court reviews Crawford and its progeny, noting that whether the 8-year-old’s statement is testimonial hinges on whether the police were responding to an emergency at that point, or whether the interrogation was instead intended to “prove past events potentially relevant to later criminal prosecution.”  The court correctly concludes that it’s the latter, and reverses. 

What’s especially heartening is that the case was tried to the judge, and the court didn’t blow off the error by saying that it presumed the judge considered only admissible evidence.  The court took the time to analyze what the judge had said in his verdict, and determined that the child’s statement had played a major role in the verdict. 

The defendant is prosecuted for welfare fraud in 1993, enters the diversion program, is kicked out in 1999 for failure to make payments, the state doesn’t get around to reinstating the charge until 2006, and it takes them another year before they bother to serve her with a capias.  A delay of that length violates the constitutional right to speedy trial, says the court in State v. Barnes.

In State v. Cooper, the defendant is charged with telephone harassment, which is “a misdemeanor of the first degree on a first offense and a felony of the fifth degree on each subsequent offense.”  The state argues that because Cooper “repeatedly violated the statute over a period of months, that is sufficient for the felony telecommunications harassment conviction.”  There’s a whole bunch of cases saying that in such situations there has to be a prior conviction, not just a prior offense, so that’s the end of that.

Our old friend allied offenses pops up in State v. Mosley.  Mosley and his girlfriend get into an argument while she’s ironing; he grabs and shakes her, she drops the iron and trips over it, the two fall to the ground.  He holds her down, despite her protests; “within seconds,” the girlfriend’s mother and son pull him off of her.  The court concludes that’s enough to constitute both domestic violence and kidnapping.  The court notes that the two crimes are dissimilar — each contains proof that the other does not — but to its credit goes beyond that and moves to the issue of whether the legislature intended to impose separate penalties because of the disparate harms resulting from the crimes.  I’m not sure that holding a person down for a few seconds constitutes a sufficiently disparate harm to warrant penalties for both, but the opinion’s thoughtful and well-written, and focuses on the correct issue, so on an appellate level, that probably counts for as much as a correct result.

And finally, a civil case.  In Asaodorian v. Demirjian, the trial court grants summary judgment in a breach of contract case, saying that the contract was oral and the 6-year statute had run.  The 15-year statute hadn’t, though, and the 8th reverses, holding that even if there’s no written contract as such, letters from the party who’s alleged to have breached the contract can suffice if they include all the essential terms of the agreement.

Just a month ago, I highlighted the Supreme Court’s review of Fletcher v. Univ. Hospitals, in which the 8th District had held that a plaintiff’s failure to attach an affidavit of merit to her medical malpractice complaint should be addressed by a motion for more definite statement, rather than a motion to dismiss.  I’d noted that “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.” 

If only my prognosticative abilities extended to investments, as anyone viewing the horrific carnage of my recent mutual fund statements can ruefully attest it does not…  The Supreme Court unanimously reverses, holding that a 12(B)(6) motion is appropriate, but that the dismissal is without prejudice.

The only other Supreme Court case of interest is In re A.J.S., where the court holds that a juvenile court’s finding of no probable cause in a mandatory bindover proceeding is appealable by the state.  What’s of special interest in the case is that the court holds that the appropriate test for determining whether the judge should have found probable cause is the same test used for determining sufficiency of the evidence of a conviction.  If you’ve got an appeal on that issue, A.J.S. is a good read. 

Busy week in the courts of appeals — 120+ cases — so let’s check that out… (keep reading…)

I’ve got one of those Charge of the Light Brigade briefs — onward, onward, into the valley of ”judgment affirmed” – due today, in Federal court no less, so let’s just take a quick spin around the web.

The Post-Heller landscape.  I’d written a number of posts (here and here) suggesting that the Supreme Court’s decision last June in District of Columbia v. Heller could have some major ramifications on criminal law.  My argument was that the Court, by establishing a fundamental right to bear arms, had opened the door to claims that weapons disability laws, and even gun specifications, in some cases weren’t based on a sufficient showing of a compelling governmental interest to pass constitutional muster. 

There have been some interesting developments, but not the ones I anticipated.  In fact, as Doc Berman’s post over at SL&P notes, the courts have uniformly rejected claims that Heller altered the landscape for laws regulating gun possession.  In fact, as this article demonstrates, the Brady Center to Prevent Gun Violence views Heller as a plus:  the establishment of a fundamental right to own a gun takes gun confiscation, the big bugaboo of gun rights groups, off the table, leaving room for “common-sense” gun regulations.  As the Center explains:

The Court went out of its way to make clear that most gun laws are ‘presumptively’ constitutional while also putting to rest gun owners’ fears of a total ban or ultimate confiscation of all firearms.  By taking the extremes of the gun policy debate off the table, Heller has the potential to allow genuine progress in implementing reasonable gun restrictions, while protecting basic rights to possess firearms. The unintended consequence of Heller is that it may end up ‘de-wedgeifying’ one of the more divisive ‘wedge’ issues on the political landscape: guns. The net result of Heller would then be positive by leading to the enactment of the strong gun laws that we need — and the vast majority of Americans want — to protect our communities from gun violence.

And lo and behold, as this article notes, Heller’s also getting some tough love from the right, with two prominent conservative Federal judges claiming that the decision “is illegitimate, activist, poorly reasoned and fueled by politics rather than principle,” and contending that the ruling was “the right-wing version of Roe v. Wade.”  That’s some serious smack.

Pissing in a bottle.  Courtesy of Drug War Rant, we find this article, informing us that Polk County, Florida officials are brimming with enthusiasm for extending drug testing of students beyond athletes, and including “all students involved with extracurricular activities.”  Or, at least, certain activities:

The district’s expanded testing will include students who participate in activities that involve some kind of competition, something in which a first-, second- and third-place award is presented, Kelley-Fritz said.

I was on the debate team in high school.  Just think:  if our school had something like this back then, me and my teammates wouldn’t have done lines of blow in the bathroom before trudging off to a tournament to debate the anti-ballistic missile system.

Seriously, one of the main purposes of a system of public education is socializiation:  to inclulcate young people with society’s values.  We are raising a generation of people to believe that the 4th Amendment and the concept of privacy do not grant rights, but are merely obstacles to the government’s regulation of our lives.  And trivial obstacles at that.

Good news, bad news.  For lawyers, anyway.  Turns out that the legal profession isn’t immune to the economic slump, as this picture over at Above the Law shows.  This Washington Post article details some of the carnage:  capping associate salaries, layoffs, even firm closings.  But there’s good news, too: 

Fees could reach a record $1.4 billion for lawyers, accountants and other professionals working on the Lehman Brothers Holdings Inc. bankruptcy, the largest in U.S. history.

Have a good weekend.  I’ll see you on Monday.

North Philly, May 4, 2001. Officer Sean Devlin, Narcotics Strike Force, was working the morning shift. Undercover surveillance. The neighborhood? Tough as a threedollar steak. Devlin knew. Five years on the beat, nine months with the Strike Force. He’d made fifteen, twenty drug busts in the neighborhood.

Devlin spotted him: a lone man on the corner. Another approached. Quick exchange of words. Cash handed over; small objects handed back. Each man then quickly on his own way. Devlin knew the guy wasn’t buying bus tokens. He radioed a description and Officer Stein picked up thebuyer. Sure enough: three bags of crack in the guy’s pocket. Head downtown and book him. Just another day at the office.

A selection from a crime novel?  No; it’s the opening paragraphs of Chief Justice Roberts’ dissent from the Court’s denial of certiorari this Monday in Pennsylvania v. Dunlap. (keep reading…)

This week’s Plain Dealer dog-bites-man story was that… wait for it… black defendants fare worse in the criminal justice system than white ones.  From the 18,000 drug convictions handed down in the Cuyahoga County Common Pleas Court in 2005, 2006, and 2007, the Pee Dee had come up with 364 cases in 2007 that were roughly similar:  the defendant was charged with simple drug possession, hadn’t been indicted before, and pled guilty.  In two stories — here and here – it published its findings:  low-level drug abusers who were white tended to have their charges reduced to misdemeanors, or to be placed in diversion programs which resulted in the charges being dismissed, at substantially higher rates than black defendants.  (keep reading…)

There were twelve apostles.  There are twelve judges on the 8th District Court of Appeals.  Coincidence?  I’ll let you decide.  Meantime, let’s see what they did last week. (keep reading…)

The big case out of the US Supreme Court this past week was the decision on the Help America Vote Act.  HAVA requires states to check voter registrations against government databases like drivers license records, and to flag mismatches.  The GOP had sued Ohio Secretary of State Jennifer Brunner to turn over information about mismatches to local officials.  The District Court had sided with the GOP, a 6th Circuit panel reversed, the 6th Circuit en banc reversed that, and the Supreme Court reversed the whole thing, vacating the District Court’s order, voting 9-0 that the Republican Party didn’t have standing to bring the action in the first place.  That’s not the end of it, of course; the GOP says it’s going to file suit in the Ohio Supreme Court.  As with everything in life, there are pros and cons on this issue.  If the public opinion polls stay as they are, it won’t make much difference, but if the presidential race tightens, Ohio 2008 could be Florida 2000.  Stay tuned.

Down in Columbus, the Ohio Supreme Court confronted another voluntary dismissal issue in Pattison v. WW Grainger, an employment case.  The plaintiff had sued for age discrimination and wrongful termination; the court had granted summary judgment on the first.  Pattison dismissed the second under Rule 41(A)(1)(a), but the Supreme Court held that a plaintiff can’t voluntarily dismiss parts of his action; he’s got to dismiss the whole case, at least against a particular defendant.  The law’s fairly clear on this, although Justice Lundberg Stratton points out some of the practical problems of this for plaintiff’s counsel in her dissent.

Other than that, a spate of disciplinary and workers comp cases. The most interesting of the latter was the rejection of an employer’s claim that one of its former employees wasn’t really permanently disabled; the court noted that he was 78 years old and suffered from end-stage glaucoma in both eyes, and decided that his hanging out in his wife’s shop, for no pay, didn’t cut it as far as being capable of remunerative employment went.  Kudos to AT&T on this one; if they spent less time stalking septuagenarian ex-employees and more time actually doing the stuff they were supposed to, maybe my internet connection wouldn’t fade out four or five times a day.

On to the courts of appeals where, of 43 decisions handed down last week, 12 of them came out of the 3rd District… (keep reading…)