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.
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