October 2008 Archives
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.
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...
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.
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.
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.
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...
Technological meltdown. The Luddites might have had a point. For the last three weeks, there's been a little icon on my computer, telling me that "new updates are ready to be installed." On Tuesday, I check it out, and it's for Windows Service Pack 3, the latest patch intended to make me secure from hackers and viruses. Sure, I say. I go through the steps to start the install, it does what it's supposed to do, and twenty minutes later tells me that I need to reboot the computer to complete the intallation. I click the button to restart, then turn to my desk to do a few things while the computer goes through the reboot procedure.
When I turn around after a few minutes, I'm greeted by the Blue Screen of Death. "Fatal System Error," I'm told. This has happened to me from time to time, on various computers I've had in the 26 years I've been using them, so it's no big deal. I use Bensing's First Rule of Computer Repair: pull the plug, wait ten seconds, then plug it in again and reboot. I get the BSoD again. And again.
I spend an hour checking the web on another computer, and learn that this is not an uncommon problem after installing Service Pack 3. There are a number of recommended fixes, and I try them all, and none of them work. I spend three, count' em, three hours on the phone with assorted flunkies from Dell and Microsoft, all of them competing with each other to see who would be the most unknowledgeable or unhelpful. (Pretty much of a tie, it turned out.) Bottom line is that I need to reinstall Windows, which will destroy my data, so I have to have somebody take all the data off first, and that costs money and takes time, neither of which I have in abundance. But a man's gotta do what a man's gotta do, so some man came and took my computer away, and that's what he's gotta do...
By the way, did I mention that I lost my cell phone on Monday? No?
Adam Sandler's next movie idea. Back in June, I told you about RC 2921.38, ominously titled "harassment with bodily substance," which essentially prohibits someone who might be inclined to hurl "blood, semen, urine, feces, or another bodily substance" at somebody else from doing so. (And yes, it would be fascinating to see a court engage in an extended discussion of the application the doctrine of ejusdem generis to the statute.) And then, courtesy of the Volokh Conspiracy, I run across this story, about a defendant who responded to being arrested for drunk driving in the following fashion:
During fingerprinting, Cruz then allegedly moved closer to one of the officers and passed gas, the station reported. In the complaint, the investigating officer wrote that police noticed a "very strong" odor.
Lest our General Assembly think that they need to come up with a statute which might criminalize such conduct, West Virginia decided to go with a charge of simple assault on a police officer.
That's a good one for CourtTV.
Swann dive. I've been telling you for the past week that I was going to explain the Ohio Supreme Court's recent decision in State v. Swann. Turns out I already did, pretty much, after the oral argument back in May. The case involved the trial judge's exclusion of evidence that another person had confessed to the crime for which Swann was charged, on the grounds that the evidence wasn't sufficiently corroborated to be reliable. Two judges on the court of appeals had concluded this was error, but one wrote an opinion deciding that it was a constitutional violation of defendant's right to present a defense, basing that on a US Supreme Court decision which wasn't really comparable. That wound up being the "majority opinion," and that's the issue that the Ohio Supreme Court took up.
In my post back in May, I'd predicted that the court would do what the prosecutor requested: reverse the case and remand it back to the court of appeals to determine whether the trial judge had abused his discretion in excluding the evidence. That's exactly what the court did, and my prognosticative skills, along with $3.75, will get me a cup of mocha java at the Starbucks across the street. Back then, I'd worried that, given that deferential standard of review, the court of appeals might figure they didn't want to get reversed twice on the same case, and uphold the trial judge. I don't think that's going to be a problem, though; Justices Lanzinger, Lindberg Stratton, and Pfeiffer dissented from the result, saying that there was sufficient evidence in the record to conclude that the trial judge had abused his discretion in disallowing the testimony.
So all's right with the world. Or, at least, will be, when I get my computer back. And get another cell phone...
It's not unusual to have a criminal case where the police officer's pursuit of the case approaches the level of a vendetta. I've got one now.
If there's one thing criminal lawyers, normally a contentious lot, can agree on, it's that the 4th Amendment has been pretty much eviscerated over the past thirty years. Decisions like Whren v. US, which upheld car stops even where the reason for the stop was pretextual, US v. Leon, which created a "good faith" exception to the exclusionary rule for searches conducted with a warrant, and Hudson v. Michigan, which held that the exclusionary rule no longer applied to violations of the "knock and announce" rule, are merely a few of the seemingly innumerable decisions which have reduced search and seizure protections to a shadow of what they were in the halcyon days of the Warren Court.
Slim pickings from the Ohio Supreme Court, and only 50 decisions in the courts of appeals. The big decision from the Ohio Seven was State v. Veney, in which the court affirmed the 10th District's vacating of a plea because the trial court had failed to inform Veney that the state had to prove his guilt beyond a reasonable doubt at trial.
Cases on the validity of pleas occur with regularity, and the basic law on Criminal Rule 11, which governs pleas, is that the court must "strictly comply" with the portions of the rule which require the trial court to advise a defendant of what constitutional rights he's waiving, and must "substantially comply" with everything else. Veney reaffirms that, and further holds that if the trial court doesn't strictly comply -- the requirement that the state prove guilt beyond a reasonable doubt is a constitutional right -- then the plea has to be vacated.
Justice Lanzinger's opinion on behalf of the three dissenters argued that while the trial judge didn't strictly comply, there still remained the question of determining whether the defendant was prejudiced. Lanzinger noted that in cases of substantial compliance, the defendant had the burden of showing that he'd been prejudiced, and suggested that in cases of strict compliance, instead of mandating automatic reversal, the courts should still consider prejudice, this time placing the burden on the state to show that non-compliance didn't affect the defendant's decision to enter the plea.
The result in Veney is a vindication of Chief Justice Moyer's "strict constructionist" view: when a trial court doesn't comply with a rule, reversal is required. While there's some logic to Lanzinger's opinion, Moyer's view has the advantage of simplicity: everybody knows what they have to do, and everybody knows what happens if they don't do it. The purpose of an appellate court, and especially a supreme court, is to define what the law is with as much clarity as can be mustered. Veney accomplishes that. One might argue that it does so at the expense of achieving a correct result in a particular case, but allowing subjective judgments about whether a defendant would have pled anyway is hardly holds out the promise that correct results will be achieved in every case anyway.
Meanwhile, back at the ranch...
I'm finally redeeming my promise to discuss the two criminal cases that the Ohio Supreme Court decided last week. Well, at least one of them; I'm going to kick the discussion of the Supreme Court case on the hearsay rule into next week.
The opinion in State v. Kalish begins, "The issue before us today is yet another remnant from our decision in State v. Foster," the 2006 decision which tossed out huge chunks of the 1996 sentencing reforms. Those reforms had included RC 2953.08, which spelled out in some detail the mechanism for appealing a sentence. The effect of Foster, of course, was to give trial courts virtually unbridled discretion in sentencing. As I pointed out a while back, since then the appellate courts have been struggling to figure out where 2953.08 fits into the post-Foster world, in terms of what what standard to apply in reviewing those sentences. Some have called the standard "clearly contrary to law" and others have called it "abuse of discretion."
You could have called it Zelda, because the net result was the same: affirmance of the sentence in slightly over 99% of the cases. Nonetheless, the Supreme Court decided to step in and sort this all out. In somewhat of a judicial novelty, instead of splitting the baby, it created twins: both standards are to be applied. First, the sentence is to be reviewed to determine whether it's contrary to law, such as, for example, if it exceeds the sentence authorized by statute. After that, it's reviewed for abuse of discretion.
My original take on Kalish was that it didn't mean much, but on second thought, it might create an opening for more stringent review of sentences, albeit a narrow one. Most appellate courts, regardless of whether they've employed the "contrary to law" or "abuse of discretion" standard, have focused solely on whether the trial judge considered the statutory mandates, i.e., the purposes and principles of sentencing under 2929.11, and the seriousness and recidivism factors under 2929.12. If the judge considered them, or said that it did, that was the end of the story. (In fact, some courts have applied a presumption that a trial judge considered those statutes in the absence of any evidence that he didn't.) You could make a valid argument that compliance with those statutory directives now falls into the "contrary to law" analysis.
So if you move the issue of compliance with the statutes out of the "abuse of discretion" analysis, what does that analysis apply to? Arguably, the sentence itself. The hornbook law is that an abuse of discretion "implies that the court's attitude is unreasonable, arbitrary, or unconscionable." The Kalish opinion repeats that, and then lists the reason that Kalish's sentence didn't qualify: despite it being her first offense (she was convicted of aggravated vehicular homicide while driving drunk), she'd been out on bond for another DUI offense when she committed this one.
In short, what you can do after Kalish is argue that abuse of discretion applies not merely to whether the trial court has considered the statutory factors, but to the sentence that it fashioned from those factors. It's not much, but prior to Kalish you had a lot of appellate courts being completely unwilling to even consider the sentence which was imposed, as long as the trial court didn't expressly say something like, "I haven't bothered considering the sentencing statutes, because I consider them so much chin music."
Indeed, what Kalish arguably does is create something similar to the way sentences are reviewed in the Federal system: the appellate court first reviews the district judge's decision for "procedural reasonableness" -- i.e., whether the judge considered the things he's supposed to consider in fashioning a sentence -- and then reviews for "substantive reasonableness": whether the resulting sentence was a reasonable one.
How this will all play out is anybody's guess. Notably missing from any of the opinions in Kalish is something along the lines of Justice Lanzinger's concurring opinion in State v. Hairston, which contained a plea for "the General Assembly to act to repair the damage done to Ohio’s criminal sentencing plan as a result of State v. Foster," a hope also expressed by GH in his comments to Monday's post. Frankly, I'm not scanning the horizon for the appearance of that particular cavalry; I think a valid argument can be made that the seven most hope-crushing words in the English language are, "Maybe the Ohio legislature will fix this."
There were a couple of decisions from the Supreme Court last week that merit some discussion, and I'd promised you a discussion of the oral argument in State v. Winn, the latest case on allied offenses. We'll do the latter today, and the former tomorrow.
Well, what were you expecting here? Pictures of nekkid wimmin?
I've written any number of posts on allied offenses, the essence being that one would be hard-pressed to find an area of Ohio law that is more confused than this one, no mean feat considering the contenders for that award -- sentencing, sovereign immunity, stare decisis, to name but a few. As I mentioned in my latest jeremiad on the subject just three weeks ago, much of the problem stems from the logical underpinnings of the court's treatment of allied offenses, especially as embodied in its decision nine years ago in State v. Rance.
In Rance, the court had adopted an "abstract comparison" test to determine whether two offenses were allied: if it were theoretically possible to commit one without committing the other in the abstract (i.e., completely ignoring what had actually happened in the case), then they weren't allied, and the defendant could be punished for both. The entire basis for this is a dissenting opinion from Chief Justice Rehnquist in a US Supreme Court case, and there's nothing to indicate that the Chief Justice, God rest his soul, was having one of his better days when he authored it. The basic problem is that if you approach the issue in purely abstract terms, it is always theoretically possible to commit one offense without committing the other, because otherwise they wouldn't be separate offenses.
Winn presents the problem squarely: the defendant had broken into a house and forced the victim at gunpoint from the living room into the bedroom, then demanded money. Winn was convicted and sentenced for both kidnapping and aggravated robbery, but the 2nd District, on a plain error analysis, reversed. In doing so, the court relied upon the Ohio Supreme Court's statement in State v. Logan that kidnapping is "implicit" in every robbery, because robbery invariably involves some restraint.
The state's swinging for the fences in Winn, arguing that in every robbery, the defendant can also be convicted of kidnapping, because the elements are different in the abstract. Logan doesn't present an insurmountable hurdle to doing that: the "implicit" statement was dicta (Logan actually involved kidnapping/rape convictions).
So what's the court going to do? Here are the options, and how I handicap it:
Agree with the state. (Odds: 10-1). That would essentially eliminate the concept of allied offenses. That's a real tough sell.
Get rid of Rance. (7-1). There may be some momentum building for that. Justice Lindberg Stratton pointedly asked the prosecutor
"If they're really part and parcel of the same crime, what's the harm in treating them as the same crime? Prosecutors always want to punish every single thing separately, and sometimes that doesn't seem fair, doesn't seem right. And so the current status of the law that's been for many many years, is there one crime, and if there are very separate motivations, you can punish them separately. That seems like a much more inherently fair scheme."
That was certainly the law for the "many many years" before Rance came down. But as the court indicated in its decisions this past year in State v. Cabrales (discussed here) and just a few weeks back in State v. Brown (discussed here), it's willing to work around Rance, but doesn't have the will to overrule it. Besides, the test announced in Westfield Ins. v. Galatis for overruling precedent (discussed here) is exceedingly stringent; no decision has been overruled since Galatis came down in 2003. (Although if any case could meet that test -- the case was wrongly decided, it's unworkable or impractical, and overruling it wouldn't harm anyone who's relied on it -- Rance would.)
Modify/clarify Rance. (2-1). The court backed off Rance a bit in Cabrales, stating that Rance didn't require a strict comparison of the elements of the two crimes, without really explaining what that meant. The court could take another shot at explaining that here. The odds for the court doing that would be better if not for the unsettling notion that it really doesn't mean anything.
Punt the whole thing. (3-1). Given the range of options, don't be surprised if the court finds some way of avoiding Rance altogether, such as by finding that the movement of the victim here (from the living room to the bedroom) was sufficient to warrant a separate kidnapping conviction, which would meet the test for a dissimilar offense even under pre-Rance law. That would require some finesse: in Logan, the victim had been accosted in the street and forced into an alley and down some steps before being raped, and the court held that the kidnapping there merged with the rape. But don't rule it out. In fact, I'd rate the odds of an appeal dismissed for being improvidently allowed as no worse than any of the above possibilities.
I mentioned last week that, despite Bill Mason's seeming embrace of open discovery in his interview with the Cleveland Plain Dealer's Regina Brett last week, he'd sent the judges a letter backing away from that. I've seen a copy of the letter since then, and frankly, it's not quite as in-your-face as I'd imagined. The letter basically adopts a "gee, if you'd only told us about this we'd have worked it all out" tone. Mason's surprise that a rule has been proposed at all is a bit much, considering that the proposal's been batted around by the judges for close to six years. Besides, the judges didn't consult the defense bar organizations in the drafting process, either. And, of course, there's nothing final about it: the rule, which you can find here, is simply a proposal, to which comments are invited. (Comments are due by October 27, 2008, and the comment process is explained here.)
Still, while Mason's letter has a generally conciliatory air, it also leaves him the out I've mentioned before: that any rule the court adopts on this subject can't contradict Criminal Rule 16. In support of this, Mason cites State v. Lambert, which is pretty much on point. Montgomery County had adopted a rule virtually identical to the one proposed here, and the 2nd District held that the rule's requirement that prosecutors turn over police reports and witness statements conflicted with Rule 16.
Lambert's not the best case to rely on here. The case went up to the Supreme Court, which decided there'd never been an appealable order, and remanded the case back to the trial court for reinstatement of the order requiring the prosecution to turn over the requested material.
Actually, Lambert was a bit of an oddity from a procedural standpoint. Montgomery had been using the rule for some time (in fact, it still is), without any problem. Lambert, though, involved an environmental violation which was prosecuted by the attorney general's office, and they squawked when the enhanced discovery rules were applied to them.
Still, while Lambert is somewhat ambiguous, the case law is pretty definitive on this point. Actually, not just case law: Article IV, Section 5(B) of the Ohio Constitution specifies that "courts may adopt additional rules concerning local practice in their respective courts which are not inconsistent with the rules promulgated by the supreme court," and Criminal Rule 57 says pretty much the same thing. Although the issue hasn't come up often, the courts have pretty routinely struck down local rules which conflicted with the criminal rules. Typical is State v. Davis, where the trial court refused to permit the defense witnesses to testify, because the defendant hadn't provided the names of its witnesses as required by local rule. The court noted that the defendant had never requested discovery from the state and, as the criminal rule didn't require him to provide discovery to the state if he hadn't requested it from them.
The bottom line here is that if Mason wants to put up a fight, he may very well win it. Whether he wants to put up a fight is another story. As I've mentioned before, the Ohio state prosecutors in general, and Mason's office in particular, have taken some major hits in the public relations arena: it seems that hardly a month goes by any more without some case or another being reversed for failure to disclose exculpatory evidence. There's no question that the judges are sick of it: their proposed rule change was adopted unanimously, and in a court with 34 judges, about a third of which are former prosecutors, that's saying a lot. And with the way the newspapers are hammering the issue, Mason's obviously realized that a complete stonewall on this isn't politically feasible, especially in an election year.
One puppy that needs to be put to sleep is the persistent claim that the prosecutors are merely looking to protect witnesses and victims. As I've mentioned on a number of occasions, the present rules already allow a prosecutor to refuse to divulge the name and address of a witness if he certifies to the trial court that this could result in harm to the witness. I've also mentioned that this procedure is rarely invoked, a point reinforced by my conversation with the judge who showed me Mason's letter: in his eighteen years on the bench, he's never had a prosecutor request certification.
State v. Ennist has some good stuff about speedy trial. Did you know, for example, that a guilty plea waives your right to claim a violation of your statutory right to speedy trial, but not your constitutional right? Neither did I. Didn't make much difference, as it turns out; proving the constitutinal violation is a lot tougher than proving the statutory violation. What Ennist also stands for is the proposition that you're never going to get a plea vacated when you've got a record in the trial court like this:
"The Court: I understand that you've been vacillating back and forth and back and forth. I'm not here to strong-arm a plea out of you.
"The Defendant: I know, and I'm sorry. I strongly apologize. She's [Ennist's attorney] been doing great for me. I apologize, and I plead guilty to the charge, ma'am, the intimidation.
"The Court: Okay. You know what, Mr. Ennist, I'm going to give you and [your attorney] a chance to talk. The Court will stay on the bench, and I'll have [the prosecutor] remain at the trial table, as well. I want to make sure that you are entering this plea fully understanding that there will be no trial, if you change your plea, and all of the other trial rights that you would be waiving. Okay, Mr. Ennist?
"The Defendant: I really appreciate it."
In Ohio Cas. Ins. Co. v. Robinson, the court takes a look at two civil rules: 3(A), which requires that service be obtained within a year of filing the complaint, and 4(E), which allows a trial court to dismiss a case if the plaintiff can't show good cause why service hasn't been obtained within six months. The plaintiff had obtained good service on one defendant, and had been trying to get service on the other; service by publication was actually completed five days after the court dismissed the case against both defendants. That was a good enough attempt at service to warrant a reversal.
Gates v. Speedway Superamerica teaches a simple, but important, lesson: if you're a customer at a gas station which isn't properly lit, and you fall down, it sucks to be you, because the gas station -- or any business owner -- isn't obligated to light the area.
Finally, I'm guessing that the supporters of Issue 5 will decide not to highlight the decision in Buckeye Check Cashing v. Madison. Issue 5 is the referendum measure intended to repeal the recent legislation limiting payday lenders to a miserly 28% interest rate on their loans. (It's explained in more detail here, and yes, the existence of a web site called "ballotpedia.com" is probably one of the 12 signs of the apocalypse.) Ms. Madison got a loan of $400, which she didn't repay, but the not-so-fine print allowed Buckeye to recoup a hefty 212% of that: there was the $60 charge for the loan, plus interest at 5% a month, and then a charge of $250 in attorney fees for suing to recover the money... The trial court, bless its Robin Hood heart, had granted judgment for only $400, but the 8th District concluded that the contract terms were unambiguous and, unfortunately, Ms. Madison had never entered an appearance or filed a brief to argue that the allowance of attorney fees was against public policy or that the contract was unconscionable. Hard to figure why she couldn't pay an attorney to do that for her.
No shortage of big decisions by the Ohio Supreme Court this week. In State v. Kalish, the court defines the standard to be used by appellate courts in reviewing sentences; later this week I'll explain why it doesn't mean anything. In State v. Swann, it decides that the application of a hearsay rule to prohibit evidence offered by a defendant doesn't violate his constitutional right to present a defense; later this week, I'll explain why this is a big deal.
Then there's McFadden v. Cleveland State Univ., in which the court answers the question of what to do with dueling appellate panels: if a panel determines that its ruling would be in conflict with a prior ruling from the district, it must convene an en banc panel to resolve the dispute. A rule is currently being drafted for this purpose, and we'll take a look at it when it comes down.
Finally, there's a few dribs and drabs. In re Guardianship of Santrucek stands for the simple proposition that if you haven't filed an application for a guardianship (because, say, you're not an Ohio resident), you don't have standing to appeal the probate court's granting guardianship to someone else. Dombroski v. Wellpoint, Inc. deals with piercing the corporate veil, in a way insufficient to arouse any interest on my part in reading it, let alone writing about it. And there were no disciplinary cases this week, so everybody must've been good. Without further adieu, let's take a look at what happened in the courts of appeals...
I'm on the road today. Actually, I was yesterday, too. I'm down in Washington, DC, attending the annual dinner for the Southern Center for Human Rights. It's an organization that was formed back in 1976, and does prison reform and death penalty defense throughout the South.
My brother Bob used to work for them. Bob took up public interest law from the time he graduated from law school, working in a variety of places -- Billings, Montana; Altoona, Pa.; and Plattsburgh, NY -- which would earn their way onto anybody's list of Places Where If I Had to Live There More than Two Years I'd Eat a Gun. After doing work for Haitian immigrants in Liberty City, Miami, he found a home with the SCHR. He was real good at it, too, winning several key cases on prisoners rights.
On Sunday, February 1, 1998, he went to take pictures of an inmate at the Fulton County Jail who'd been beaten by guards. The jail refused to let him take the pictures, so the next morning, he walked into Federal court and filed a lawsuit, and had the pictures by that afternoon. The next day, he headed off to Valdosta to see a couple more clients in the prison there. On the way back, he was killed in an automobile accident.
The SCHR sent me an invitation to their annual dinner a couple of months back, with a short note from the head of the organization telling me they were going to do a little remembrance of Bob at the dinner. That didn't surprise me. I met a lot of them when I went down for Bob's funeral, and a nicer group of people you couldn't hope to meet, and it was clear that they thought the world of him.
The organization has a real nice web site, and it recounts the many successes they've had, not only in prison reform but in death penalty litigation as well. If you've got some spare coin, they're a 501(c)(3) organization, so any contributions are tax deductible. If you want, you can earmark them for the Robert F. Bensing Fellowship Fund.
I'll be back on Monday. Have a good weekend.
The Cleveland Plain Dealer, like many other newspapers in the country, is facing a decline in readership. Its answer to that crisis has been to cut back its pages; the front section, containing national and international news, has gone from a customary sixteen pages to eight, and the Metro section has suffered a similar amputation. Nonetheless, Cuyahoga County Prosecutor Bill Mason found himself featured in not one, but two news stories yesterday.
I've commented before that a distressing number of trial and even appellate courts can't seem to get a handle on Crawford v. Washington, the 2004 Supreme Court decision which banned the use of "testimonial" statements at trial. So I was happy to see a 6th District decision a couple of weeks ago that did a thorough analysis of how Crawford applies in various situations. Whether that analysis was right is another matter.
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