November 2008 Archives
Several months ago, I got a call from a producer at a local radio station. They'd seen stuff in the paper about open discovery in criminal cases, and she'd come across my blog, and she thought I might be able to explain some elementary aspects of the subject and answer some questions she had. The first of those was what the rules currently provided for discovery. I began explaining that to her, but when I got to the part about where the prosecutor had to provide the names and addresses of witnesses, she stopped me. "You mean they're already required to provide that?" she said.
"Then what's all the fuss about?"
Not a good week for women in Cuyahoga County; the five criminal cases on appeal involved two domestic violence convictions, and one where the defendant had killed a rape victim. Not a good week for defendants, either; after last week's shutout -- criminal defendants went 0 for 8 -- we finally get a reversal in a criminal case, but it turns out to be a reversal of a grant of a motion to suppress.
It would be a lot easier for me to write about cases if there were cases to write about. The Ohio Supreme Court hasn't handed down an opinion on a non-election-related case since October 23. The big news out of the US Supreme Court was SCOTUSblog's eye-glazing account of how the Court had granted an amicus curiae 15 minutes of oral argument in an anti-trust case, instead of the customary 10.
So, without further ado, on to the courts of appeals...
Expanding the Blogroll. When I started The Briefcase back in May of 2006, it was one of the very few blogs devoted to Ohio law. Some others have come along since then, and some of those have dropped out. That's understandable. Doing this, as you might guess, can be incredibly time-consuming. I'm convinced that Prof. Berman of the Sentencing Law & Policy blog had himself cloned, and is now actually nine different people.
But there are a number of Ohio blogs out there now, and I've revised my blogroll to reflect that. They can not only be a good source of information on a particular area of law, but they can give you some perspective that you might not otherwise get elsewhere.
Brian Wilson (the Canton lawyer, not the Beachboy), for example, does personal injury work and has a blog called Bullseye. Yesterday he had a nice piece about a Supreme Court decision from a couple months back, Hutchings v. Childress, which 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 provide that care. I'd glossed over the decision when it came down, but Brian does a good job of pointing out that the result isn't terribly consistent with the concept of "family values": if you take time off work to provide first-rate care for your wife, the defendant and his insurance company get to compensate you at the rate of a minimum-wage home health care aide. I probably should have addressed Hutchings more thoroughly when it came down, but frankly, after Arbino v. Johnson & Johnson, which I discussed here, the Ohio Supreme Court's siding with insurance companies in personal injury cases is about as much of a dog-bites-man story as you're going to find. Thanks to Brian for picking up the slack.
Well, at least the wife in Hutchings would have had her own day in Pennsylvania. Other blogs outside of Ohio are fun, too. Courtesy of Kipesquire's A Stitch in Haste, we find this story about Pulaski Township in Pennsylvania -- where, no doubt, the bitter townspeople cling to their religion and guns -- which tried to close down an adult bookstore because it had the temerity to remain open for business on Flag Day, based upon an 1893 law purporting to recognize various state holidays. The problems with this approach?
In legal briefs, attorneys for Adultland and owner Eric V. Boron, of Salem, Ohio, wrote that state-recognized holidays could be read to include such obscure events as Hubert J. Humphrey Jr. Day on May 27, Commodore John Barry Day on Sept. 13, Bird Day on March 21 and Shut-In Day, the third Sunday of October.
The appeals court kicked it out on void for vagueness grounds, sort of skimming over the possible First Amendment implications of the case; at a time when stores have Thanksgiving Day sales, it seems hard to believe that the same fate befell businesses in Pulaski Township which did not have an adult orientation. At any rate, it's a good guess, as Kipesquire wryly notes, that Constitution Day was not on the list of holidays where business activity was proscribed.
Dirty Dancing. In other small-town news, Marshall, North Carolina, had to pony up $275,000 as a settlement for banning Rebecca Willis from its community dance hall. The ban was based on complaints that Willis "danced in a sexually provocative manner, wearing short skirts while simulating sexual intercourse with her partner who hunched on the floor," with some observers claiming that they could see Willis' underwear and "privates."
Willis is 64.
Back on October 1, the Plain Dealer's Regina Brett opened a column with these two paragraphs:
Cuyahoga County Prosecutor Bill Mason could end up opening the door to open discovery in Ohio.
I met with him on Monday for nearly an hour and a half on the ninth floor of the Justice Center. The most important thing he said was: "I am not against open discovery."
That was then. Apparently, something occurred to change his mind, like perhaps the fact that it was actually going to happen. The judges voted it in last week, and yesterday's fishwrap came emblazoned with a front-page article entitled "Prosecutor Bill Mason rejects open discovery rule."
This wasn't a surprise, given what happened in his meeting with the judges last Wednesday, which I chronicled here. What is surprising is that Mason's latest position gives slighting mention to what has been up to now his predominant reason for urging caution on open discovery: the possibility of threats to witnesses or victims. A smart strategy here would be to take a case where there was good potential for intimidation, and use that as a vehicle for attacking the new rule. Making a broadscale attack on the rule just makes it look like his office is trying to hide something.
Which doesn't play well politically. There was a meeting yesterday between the OACDL and the Ohio Prosecutor's Association, with the item on the agenda being the defense bar's proposed amendment to the discovery rules, which you can read here. The Court rejected this rule just two years ago, but even some people with the OPA acknowledge that the climate's changed, what with the spate of reversals by the 6th Circuit and even Ohio courts because of failure to disclose exculpatory evidence. Something needs to be done to protect witnesses and victims, but if you look at the evolution of criminal discovery rules, you'll find a steady expansion which is gaining speed. It's going to happen, and giving a Dick Cheney response to it instead of a measured one means that it's going to happen that much sooner.
One step forward, one step back...
Dallas may not be the capital of Texas, but it likely holds the honor of being Ground Zero for wrongful convictions. Piloted for 36 years by Henry Wade, the prosecutor's office achieved a stunning 93% trial conviction rate. (There was actually an informal group of Dallas defense lawyers who'd won cases; they referred to themselves as "The 7% Club.") Even after Wade's retirement in 1986, the office continued racking up convictions.
The first chink in that armor appeared just a couple years after Wade's retirement, with the release of Errol Morris' documentary, The Thin Blue Line, about the 1977 conviction of Randall Dale Adams for the killing of a Dallas police officer. Adams was convicted and came within three days of being executed; he was freed when it turned out that the guy who had fingered him for the shooting was the one who did it.
Brutal week for criminal defendants by the lake this week: just three weeks after batting .333 -- eight reversals out of twenty-four cases -- they go oh-for-eight. That mirrors the results statewide: other than a reversal in a juvenile delinquency case, all of the criminal cases in the state last week resulted in affirmances. Anyway, the highlights -- er, lowlights -- from the 8th:
Nothing out of the US Supreme Court this past week, except a decision sure to cheese off the Save the Whales Foundation: in Winter v. National Resources Defense Council, the Court upheld the Navy's right to conduct sonar excercises in the Pacific, despite claims of environmentalists that such exercises might harm marine life. Good news for Flipper: while the Court didn't decide one of the underlying issues -- whether the Navy had to prepare an environmental impact statement -- the Navy's going to do so anyway.
Nothing of significance out of Columbus, either, except that the Supreme Court's agreed to determine whether the add-on one-to-ten year sentence for Repeat Violender Offender specifications survived Foster. I had several posts a couple years back claiming that they didn't, but several courts, including the 8th, have come to a contrary conclusion, and there's language in Foster and some subsequent Supreme Court cases which muddies up the waters. So, a year or so from now, we'll finally get a resolution of that. Maybe; that same issue, except in the context of Major Drug Offender specifications, was present in another appeal that just got dismissed by the court after being pending for ten months.
On to the courts of appeals, which don't get the opportunity to duck cases that way...
My wisdom confirmed. Remember all those posts I wrote about how the Supreme Court's decision this July in DC v. Heller, declaring that the Second Amendment granted an individual right to bear arms, would have a profound effect on gun regulations? Posts like this one, in which I sagely predicted that "Heller will herald the beginning of the development of a significant, and up to now neglected, area of constitutional law"? Or this one, where I promised to "keep my eye out for the briefs and decisions that are sure to follow on this subject"?
I've blogged before about the new proposal on discovery from the Cuyahoga County Common Pleas judges. I highlighted the proposal in this post back in September; basically, it would require the prosecutor to turn over witness statements and police reports, which Head Honcho Bill Mason's office has jealously guarded over the years. (A copy of the proposal can be found here.) Mason floated his counterproposal in an interview the Plain Dealer's Regina Brett, which I discussed here, and responded to the judges' proposal in a letter which I discussed here. His formal comment to the rule is detailed here.
That last post mentioned the upcoming meeting with all the major players: Administrative Judge Nancy O'Donnell, eight other judges, and Mason (and a few people from his staff), Cuyahoga County Public Defender head Dave Tobik, CCDLA President Mark Stanton, and OACDL President Ian Friedman. That took place on Monday.
Four years after Crawford v. Washington revolutionized Confrontation Clause jurisprudence, at least one major issue remains completely unsettled: the admissibility of lab reports and similar records which have been routinely admitted at trials over the years. The Ohio Supreme court tackled that issue a year ago in State v. Crager, where the lab analyst who'd conducted the DNA tests was on maternity leave at trial, and the prosecution had presented another analyst who based his testimony on her report. The 3rd District had tossed the conviction, holding that the lab report was testimonial evidence under Crawford, and thus required the testimony of the person who actually performed it. The Ohio Supreme Court reversed, broadly holding that "records of scientific tests" aren't testimonial. (I discussed Crager here.)
The defendant in State v. Pate had gotten his 20-year prison sentence the old-fashioned way: he'd earned it, firing a couple of shots at police officers while running from them, then hijacking a car at gunpoint and leading the police on a car chase. Proving once again that truth is stranger than fiction, the chase ended when Pate crashed his car into the Justice Center. The court's decision answers several questions, the most significant of which is, Does the court have to advise the defendant at the plea hearing of the exact consequences of violating post-release controls? The court had told Pate at the plea that he would be subject to PRC for five years, and that a violation could result in him going back to the joint for up to half his prison sentence. Pate argued that the judge had to specify what that period would be, but the court noted that would be difficult to do, since the trial judge hadn't settled on a sentence at that point. "Doing the math at the sentencing is sufficient. UPDATE: Analysis corrected, thanks to comment by Jim Trotter below.
Nothing going on down in Columbus, but now with the elections over, maybe we'll see some things happening: the oral argument calendar for the Supreme Court resumes next week. Speaking of elections, 43 new judges were elected in Ohio last week. If that doesn't seem like a whole lot, considering that we've got 88 counties, it isn't. Although Ohio judges aren't given the lifetime appointments their Federal counterparts are, in practice you'd be hard-pressed to tell the difference, other than the mandatory retirement age. Only six incumbent judges were defeated in the entire state on Tuesday. Here in Cuyahoga County, of the twelve judges -- common pleas and appellate -- running for re-election, only three were opposed. And two of those had just been appointed to vacant seats this year.
Down in DC, no decisions as of yet, but the Court's going to have oral argument on Monday on a Crawford-related matter: whether crime lab reports are testimonial, and thus require live testimony by the person who conducted the test and prepared the report. I'll have more on that later this week.
As for the courts of appeals...
Dirty Talk. As I mentioned earlier this week, the big showdown in the US Supreme Court was Tuesday's oral argument in FCC v. Fox, the case involving the FCC's recently-developed policy of punishing "fleeting expletives" in broadcast media. (Discussed here.) The anticipatory buzz was the prospect of the lawyers and justices batting around the forbidden words -- "fuck" and "shit" in this case -- causing John Marshall to turn over in his grave, or at least giggle a lot. In fact, Justice Roberts had taken the caution of announcing that the audio of the argument, which is usually released within an hour, would be withheld, probably out of fear that some enterprising soul would do some creative splicing, and the internet would be flooded by the end of the week with .mp3's of Scalia seeming to say, "Fuck... Souter."
The fears proved unfounded, with nary a dirty word passing anybody's lips. For those of you keeping score at home (the transcript of the argument can be found here), the euphemism count broke down as follows: "F-word" was used sixteen times, "S-word" six, and "F-bomb" on a solitary occasion, courtesy of Solicitor-General Garre arguing that rejection of the FCC policy posed the specter of "Big Bird dropping the F-bomb on Sesame Street." Better that than the S-word, I suppose.
That other F-word -- First Amendment -- found its way into the argument fifteen times, mostly in discussion of how the Court might avoid dealing with it. That's somewhat understandable; the 2nd District, from whence the case originated, had refused to consider the issue as well, deciding the case solely as a question of administrative law and procedure.
So what's the likely outcome? The Smart Guys over at SCOTUSBlog break it down for us:
It seemed possible that the Court’s majority would find the Second Circuit was somehow wrong, but that the Court might not want to flatly reverse because that would validate the current FCC policy without further justification, and it was not clear there would be a majority for that. Could it be that the Court might simply affirm, but make the opinion so narrow as not to decide anything finally, until after the FCC reexamines its policy, and there is then another round in the courts? Or, indeed, might the Justices decide it was premature for them to have gotten involved?
Well, I guess that settles that, huh?
Bizarro World. Courtesy of Overlawyered comes this story about Jonathan Lee Riches, who's currently an inmate of a South Carolina prison. To occupy his time, he sues people -- George Bush, Michael Vick, Barry Bonds, the Eiffel Tower. (Which of those is not like the other?) His latest is against the manufacturer of a video game called World of Warcraft, which, according to the complaint,
caused Riches mind to live in a virtual universe, where Riches explored the landscape committing identity theft and fighting cybermonster rival hacker gangs. Riches was addicted to video games and lost touch with reality because of defendants. This caused Riches to commit fraud to buy defendants video games. Riches chose World of Warcraft over working a legit job. Riches mind became a living video game.
Maybe next time Riches can sue the producers of Fox's Prison Break because they didn't take him along.
I wanna be elected. A Democratic tide on Tuesday couldn't lift the boats of the two candidates for Ohio Supreme Court; they got swamped by 2-1 margins by the Republican incumbents, Maureen O'Connor and Evelyn Stratton, leaving us with an all-GOP lineup there.
In other election news, Cash America didn't waste any time announcing that it was shuttering its 43 stores in the wake of Tuesday's vote capping payday lenders' interest rates at 28%, down from a slightly more remunerative 391% annual rate.
I've got mixed feelings on this. On the one hand, these lenders did perform a service. Try walking into a bank and getting them to loan you a couple hundred dollars until Friday's paycheck comes in. And there's the standard libertarian argument about how government shouldn't interject itself into relationships between two freely-contracting parties, just to protect one of them. On the other, that whole argument had too much of a taste of court decisions in the early 1900's rejecting wage, hour, and other labor protections, on the essential grounds that if 12-year-olds wanted to work in the coal mines, they should be free to do so.
See you on Monday.
There were two cases on guilty pleas out of the 8th this past week. While one resulted in the vacating of the plea, a highly unusual result, I confess it was pretty much of a headscratcher.
Some funky stuff this week. Last week, I mentioned that there's a lot of case law from the 8th holding that a frisk for weapons isn't automatic after a stop; even where drugs are involved, the police have to show that they had a reasonable suspicion that the suspect is armed and dangerous. Well, there are 12 judges on the court, which means there are 220 possible 3-judge combinations, and in State v. Franklin, the defendant pulls arguably the worst possible panel for a search issue. Although the officer says nothing more than that the patdown was done "for our protection," that's enough for the court, citing the language from the Supreme Court decision which says that frisks are "virtually automatic" in drug cases.
Three weeks ago, I argued that the Supreme Court's decision in State v. Kalish creates an opening, however slight, for attacking sentences: there's language in the opinion which suggests that the reasons the trial court imposed a particular sentence -- that is, it's analysis of the seriousness/recidivism factors -- may be reviewed under an abuse of discretion standard. In State v. Nolan, the 8th District seems to buy into that argument: noting that the trial judge gave consideration to Nolan's mitigating evidence, and to the fact that it was his seventh felony and that he'd committed three probation violations on two of the cases, the court concludes that there's nothing "to suggest that the sentencing decision was unreasonable, arbitrary, or unconscionable."
Some dribs and drabs... It's long been the law that if the judge puts a defendant on community control sanctions without specifying what prison sentence will be imposed for violation, she can't impose one. In State v. Goforth, the court holds that this requires the judge to not only specify the sentence at the initial sentencing hearing, but in the journal entry as well. In State v. Barnes, the court holds that an arrest warrant allows the police to enter a third party's home if they have a reasonable belief that the person named in the warrant is in the house.
CORRECTION: Last week I wrote about the latest developments in the continuing saga of Bill Mason v. Open Discovery, a contest mildly evocative of the Godzilla v. Megalon duels. I opened the post by describing a recent murder case and stated that "prosecutors had played the normal hide-and-seek with witness statements and police reports."
I got a comment on the post from Matt Meyer, one of the county prosecutors, who pointed out that the prosecutors actually had turned over the material requested by the defense. As can be seen from this article, the fuss seemed to revolve around the fact that the prosecutors hadn't ordered any DNA testing, rather than that they'd tried to hide evidence, or failed to disclose evidence they knew was exculpatory.
Thanks to Matt for pointing this out and correcting the record.
With two of the seven judges out campaigning for re-election, not much going on in Columbus. Down in Washington, the Supremes heard a case yesterday involving federal pre-emption, specifically, whether FDA approval of a drug bars state court common-law negligence claims. For those of you who make big bucks suing drug companies -- a subset of the legal profession which, alas, does not include me -- you can read all about it here.
Today, the Court's hearing oral argument in FCC v. Fox, which reviews the FCC's declaration that the broadcast of certain terms -- "fuck" and "shit" -- can always be penalized, despite the "fleeting expletives" policy followed by the FCC for the previous quarter century. I had a post on the case here, and I'll have a post on the argument later this week.
On to the courts of appeals:
I was on the road this weekend, so we'll do the Case Update tomorrow. Which won't take long, because there was absolute diddly out of the Ohio Supreme Court last week. Instead, I'll update you on a couple of clients.
First up is "Jamie," the 46-year-old transvestite with 26 prior drug cases. I got appointed to represent her on her 27th, and wound up trying the case. That data point in what most observers had already concluded was an unremarkable legal career is chronicled here, a must-read for those unsure of the distinction between a "hand job" and a "head job." After her conviction -- an event as predictable as the sunrise -- I managed to persuade the judge to put her on probation, for reasons even he couldn't figure out.
Well, the other day I ran into the cop who'd arrested her for the first case, and he told me she'd been busted again. Wow. Who could've seen that one coming?
The other story has a happier ending. A couple weeks back, I told you about Leon, who got nabbed in a control buy of $60 worth of marijuana. The ensuing search resulted in the discovery of several mason jars of the evil weed, plus nine profoundly healthy plants of the stuff, in what the prosecutor described as one of the most professional grow operations he'd ever seen. Three guns were also discovered, which Leon wasn't supposed to have as the result of a previous drug conviction. Plus, Leon was a believer in the "sovereign citizen" routine pushed by some militia types, believing that the United States and the State of Ohio had no legal authority over him. He wound up being his own attorney, and pissing off the judge so badly that the judge gave him maximum consecutive sentences of more than 15 years.
I got the case reversed because the judge hadn't gone the little niceties that a waiver of the right to counsel requires. When the case came back, to a different judge, I got all the evidence thrown out because the warrant was bad. Turns out the controlled buy, which was the centerpiece of the affidavit, actually hadn't occurred at the point the warrant was issued, even though the affidavit referred to it in the past tense.
The prosecutor still wanted to try the case on the 5th degree sale, punishable by 12 months in the joint, despite Leon already having done 15 months. So last Monday I went over for the trial. I'd put the municipal court judge (we'll call her Fitzhugh) who issued the warrant on my witness list, the prosecutor had filed a motion in limine, and when I got over to court I found the trial judge had granted it. She explained that Judge Fitzhugh would only be a witness on a collateral matter. I explained that it wasn't collateral: the State had to put the cop on the stand to testify about how the buy went down -- searching the informant beforehand, finding the drugs afterward -- and that put the cop's credibility in issue. If he had lied to get a search warrant on that very case, that would demonstrate bias, and I should be able to get into that. Of course, if he admitted at trial that he'd lied in the affidavit, then I wouldn't need to bring in Judge Fitzhugh, but at the suppression hearing he'd insisted that he'd told her that the buy had yet to take place, and if he stuck to that story at trial, well...
The judge looks at me for a couple seconds, says, "You know what? You're right. I'll let it in."
The prosecutor fidgets in his chair. I say, "One more thing, your honor. As an officer of the court, I felt I need to bring this to your attention. I believe the court may have a duty to inform the police officer of his 5th Amendment right against self-incrimination if he takes the stand."
The prosecutor sags in his chair like he's taken a bullet. "Well, I'm not going to do that," says the judge. "I assume that the prosecutor's office has properly advised the officer of his situation."
I stand up. Time to stick the knife in a bit deeper. "I'm going to call my office and tell them to issue a subpoena for Judge Fitzhugh." Judge gives it a twist, says, "Well, I think we should call her right now, and let her know it's coming, and find out what the most convenient time for her to appear would be." She picks up the phone and starts dialing.
That took care of that. The prosecutor did his best Jesse Owens impersonation running downstairs and getting approval to dismiss the case, and Leon, some six months after walking out of prison to face ten felony charges, walked out of court a free man.
Sometimes things work the way they're supposed to.
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