December 2008 Archives
I'm betting you're going to have a better holiday than this guy.
See you back here on January 5th.
'Twas the week before Christmas, and all through the courthouse, not a creature was stirring, except for the people in Courtroom 21-A, who were listening to the judge finish up his instructions to the jury an hour after the building had been officially closed.
The Ohio Supreme Court's decision this week in State v. Diar is rather interesting, in light of some recent developments in the death penalty in Georgia. In most situations, a holdout juror, unless he can persuade everyone else to adopt his view, can do more than deadlock the jury. For example, if the jury's considering aggravated murder and the lesser-included offense of murder, all of them have to agree on one or the other.
That's not true for the penalty phase of a capital case. As Diar makes plain, the jury has to be instructed that if a single juror won't agree to impose a death sentence, then a life sentence has to be imposed.
I got assigned an appeal a little while back with an interesting issue. The case centered on one of the city's local after-hours joints, where drinks are dispensed without benefit of a license from the Liquor Commission, and, horror of horrors, people gamble, too. Since there's no other crime in Cleveland, the vice squad had set up surveillance of the joint for lack of anything better to do.
The least of Howard Clay's difficulties was the weapons under disability count he was facing; the two felonious assault charges, both with gun specs, were the bigger problem. Then again, the disability charge was more defensible: Clay had been indicted under the provision of the statute which creates a disability for someone "under indictment" for possession or trafficking in drugs. The thing was, at the time he was arrested on the felonious assault charge, he had no knowledge that he was under indictment for a drug offense.
Interesting week in the 8th District. Twenty-five cases, only eight of which are criminal; usually, that ratio is reversed. Of the eight, three are reruns, having been before the court before. The court's struggle with allied offenses continue.
If you've stopped here looking for the Case Update, relax, it's right below this post. One of my legions of faithful readers pointed out that I'd screwed up the link for the case I'd mentioned regarding expungement on Friday (the one that says an uncounseled misdemeanor conviction is still a prior offense for purposes of the expungement statute.) I've corrected the post to reflect that, and here it is if you're too lazy to go back.
In addition to the Case Update, I'll be doing the customary What's Up in the 8th tomorrow, with rundown of significant cases from the Cuyahoga County Court of Appeals; if you want to learn the possible fate of the Lakewood Dog Park, you'll want to check it out. Wednesday I'll discuss two of the cases that came out of the Supreme Court last week, one dealing the "two-dismissal rule," and the other a criminal case that peaks in on the question of strict liability offenses. Thursday I'll take a look at the cases being argued in the Supreme Court this week, and on Friday I'll examine ineffective assistance of counsel claims.
And then, I'll be off until January 5.
Nothing out of DC, but the Gang of Seven in Columbus more than makes up for it, with a half-dozen decisions, all of them notable. In State v. Diar, where the court affirmed the conviction of a woman who killed her 4-year-old child, but vacated the death sentence because the jury had been instructed that all twelve had to agree on life imprisonment or death. It's been the law since 1996 that a single juror's objection to a death sentence takes that penalty off the table.
Several civil decisions of note. In Cheap Escape Co. v. Haddox, the court voids a forum selection clause which provided that any action had to be brought in the Franklin County Municipal Court, despite the fact that all of the dealings occurred in Summit County. The court held that the jurisdiction of municipal courts is limited to actions which have a territorial connection to the court. Selection clauses for common pleas courts are unaffected, since their jurisdiction isn't limited in that fashion.
In Byrd v. Knuckles, the court says that child support arrearages can be modified by agreement of the parties, and in Grundy v. Dillon, it confronts the situation of a juror who withheld information during voir dire. The court decides that in order to obtain a new trial on that basis, the movant has to show that an accurate response would have provided a basis for challenging the juror for cause. Good luck with that.
Two other decisions, one civil and one criminal, merit more extensive treatment, as we say in the law biz, and I'll provide that on Wednesday. As for the courts of appeals...
This isn't Texas anymore. When George W. Bush was Governor of Texas, he signed the death warrant for 152 executions; that was a full 38% of the death row inmates executed during that time period in the entire United States. When he returns to Crawford in another 40 days, he's going to find the state far different, at least in that dubious context.
To be sure, of the 36 death penalties carried out in the country this year, Texas accounted for half of them. But, to put it in marketing terms, the inventory's being used up. The latest report from the Texas Coalition to Abolish the Death Penalty indicates that only nine people received the death sentence in the state this year, the lowest number since capital punishment was reinstated in 1976. Harris County (Houston), which used to send as many as 15 people a year to death row, didn't impose any death sentences this year, and has imposed only seven in the past four years.
Creative prosecutions. First there was the effort to charge anyone who was arrested for some other crime and found to have drugs when they were booked at the stationhouse with "attempting to transport drugs into a detention facility." That was killed, at least here in Cuyahoga County, by the 8th District's decision in State v. Lee, discussed here. Then there was State v. Cherry, discussed here, where the police chased a couple of guys after a burglary, and found a gun in their car when the car ran into a ditch. The perps were charged with having a weapon under disability, under the "fugitive from justice" portion of the statute. Their fugitive status, of course, stemmed from fleeing from that same burglary.
But, courtesy of CrimLaw, the topper comes from Kentucky: "Dante Pardue, who last year broke into a home with another teenager who was then shot and killed by a man in the home, has pleaded guilty to reckless homicide in the death of his accomplice."
Well, that was worth it. Thanks to DUI Blog, we learn police in Bakersfield, CA, recently set up a drunk driving checkpoint, and went 0 for 3000. Well, not quite. True, of the 3000 drivers they stopped, none was drunk. But 85 of them were cited for various licence problems, and another 32 for vehicle code violations.
This is interesting in light of Arizona v. Johnson, which I discussed yesterday. The case involves the potential expansion of the power to frisk auto passengers for weapons. Here's Justice Scalia's remark during oral argument:
I guess what about -- I --I guess if we held that you could do this, this pat-down search here, it would probably carry forward to any other kind of seizure like a -- a roadblock to inspect for drunken driving or anything like that?
The idea that the police could set up a checkpoint, stop your car for no reason other than because you drove through the checkpoint, and make you and your passengers get out so you can be frisked, reminds me of several countries, but one of them isn't the United States.
Ask The Briefcase. One of the problems with this Blog, and with creating the illusion that I know what I'm talking about, is that other lawyers will actually think that I do, and call and ask questions. Yesterday's was a doozy: is an uncounseled misdemeanor conviction a "prior offense" for purposes of the expungement statute? I said that my gut instinct told me it was, and the attorney's rather uncharitable response was something to the effect that neither he nor his client were notably interested in what my gut thought of the matter. So I turned to my BFF Lexis, punched in a simple query, and seconds later I had the answer: my gut was right, at least according to this 1994 8th District decision.
Random non-legal observation. Romeo Crennel and I have at least one thing in common: we have exactly the same chance of being the head coach of the Cleveland Browns next year.
Holiday schedule. The Briefcase is going on vacation for the two weeks of Christmas and New Years. Looks like I'm going to need one: the Supreme Court finally revved up, churning out half a dozen decisions, and I ran into one of the 8th District judges last night at the CCDLA Christmas party, who told me that that court had released 25 opinions earlier that day. You'll read all about it next week.
CCDLA Listserv. The CCDLA Listserv is finally up and running. For more information, and to get access to it, check out this portion of the CCDLA website.
See you on Monday.
The course of true love never runs smooth, and neither does the 4th Amendment. That was clear after the oral argument Tuesday in Arizona v. Johnson, the Supreme Court's latest foray into that thicket.
There comes a point in just about every attorney's career when you realize you're in over your head. Most of the time, it's because you're spread too thin. You've just got too much going on, and it's gotten to the point where stuff's falling through the cracks: you're missing deadlines, you're not keeping track of pretrials, you're walking into trials without adequately preparing for them. That's bad enough.
But there's nothing to compare with the gut clench that comes when you're lying awake at three o'clock in the morning thinking about that case that you've got, the one you never should have taken, the one you have no idea what to do with, the one that you know you're going to lose simply because you don't know what you're doing, and there's not anything you can do about it.
The court spent the week, for the most part, tying up some loose ends, at least in the criminal area.
Last week in Washington, the Supreme Court heard argument in the Phillip Morris case, which stems from an Oregon judgment for $80 million in punitive damages in a smoking case. The Court has reversed the judgment twice, only to have the Oregon Supreme Court reinstate it on different grounds. A not entirely unbiased, but entertaining, article about the oral argument can be found here. This week, the Court will have argument in Arizona v. Johnson, which presents the question of whether police can frisk a passenger of a vehicle they've stopped if they believe he's armed and dangerous, even if they don't have any reason to believe he's committed any crime. I'll have a post on that later this week.
I'll also do a post on the Ohio Supreme Court's disciplinary decisions, because there were ten, count 'em, ten of those last week. Sprinkled among them was Patterson v. APA, where the court upheld the dismissal of a habeas petition alleging failure of the trial judge to properly impose post-release controls at sentencing, because the defendant had an adequate remedy at law to challenge that on appeal.
And in the courts of appeals...
Guess he'll learn what a tight end really is. Seems that Giants wide receiver Plaxico Burress' biggest problem isn't that he (a) shot himself in the leg, thus (b) getting a four-game suspension which will cost him over a million dollars, and (c) putting in jeopardy the $35 million contract he signed at the start of the season, under which he's still due $27 million. No, the correct answer is: (d) he looking at 3 1/2 years in prison. As this article notes, last year, at the urging of New York Mayor Mike Bloomberg, the state legislature passed a law making that the minimum mandatory penalty for illegal possession of a loaded weapon.
On August 26, 1998, Jeremy Gross robbed a convenience store. He had worked there part time, and knew the clerk, 24-year-old Christopher Beers. There was little finesse to the robbery. Gross and an accomplice marched into the store, and Gross shot Beers in the chest and stomach, then followed him into the back office and shot him in the face as Beers pleaded, "Why, Jeremy, why?" Gross told him to shut up. After the two robbers fled, Beers managed to stand up and shuffle over to a pay phone, where he collapsed and died.
All of this was captured by the store's surveillance cameras, and after viewing it, the prosecutor announced that "there isn't a jury in the world" who wouldn't impose the death penalty for the crime.
I have a preliminary hearing for Bobby. According to him, he and his pals are standing outside a store when the police pull up and, for no reason, frisk him and find drugs. No reason? No reason, he assures me.
The arresting officer is the only one to testify at the hearing. He tells us that Vice had sent an undercover cop in to make a buy, using a marked $20 bill. The cop had then flagged backup, which had taken down Bobby. The nice thing about a prelim is that there's no jury, so I can ask whatever I want. In this case, it's, "Officer, did you find the marked $20 bill?"
"Yes, we did," he says.
"And where did you find it?" I ask, pretty sure of the answer.
"On your client."
At which point Bobby leans over and whispers, in the anguished tone of someone who's been truly deceived, "They didn't tell me it was marked!"
Three months later we're at the sentencing. "Bobby," the judge says, "I'll give you a choice. You can do six months in prison, and when you get out, you're done." (This was before the SB2 reforms, when they had determinate sentences with no parole.) "Or I can give you probation, but if you violate, you'll do a year."
Bobby didn't hesitate. "I'll take some of that probation." Exact words.
He gave a dirty urine the first time he was tested.
* * * * *
Robert's got some 'tude. The first time I go visit him in jail, he asks me what the unit dose for cocaine is. I tell him there isn't one; either you've got less than five grams, or you've got more. He tells me I'm wrong. Also tells me that they just found residue in the crack pipe he had, and you can't be convicted for just residue. I tell him that's not true, and he tells me again that I'm wrong. I've been doing this for 33 years, I'm with someone who's been to the joint four times, and he's the bright guy in the room. He wants a trial.
He bonds out after a month or so, and the day before trial I go see the judge. She's a sweetheart. Won't put him on probation, because he's screwed up the three other times a judge has done that, but checks and sees that he's done forty-five days in county, so she'll give him time served: find him guilty, sentence him to the forty-five days in jail he's already done, no probation, no costs, no fine, out the door.
He comes to court the day of trial, and I explain it to him. "But we didn't have the drugs tested," he tells me. "I'm entitled to have the drugs tested."
"You sure are," I acknowledge. "And I can go in and tell the judge we want to do that, and she'll kick the case for three weeks and we can find out if it was really cocaine residue. If it turns out it is, you do six months or a year."
"And I don't think the cops had the right to stop me."
"You know what, I don't think so either. At least from what the prosecutor told me. So we can do a hearing on the motion to suppress I filed and find out what the cop really says. And if the search is bad, you go home, just like you're going to do anyway. But if it isn't, then you'll have to do some time."
It takes me twenty minutes to talk him into it. Well, not really talk him into it. I just keep saying, "Hey, you're right, let's try the case, find out what happens. I mean, I get to leave here today. Let's roll the dice and see if you get to leave, too."
So we're doing the plea, and the judge gets to the part where she asks Robert if he's satisfied with his lawyer.
Robert has to think about it.
He stares down at the floor pensively for a moment or two. The judge says, "Hey, he got you a pretty good deal, don't you think?"
Robert shrugs. "Yeah, I guess," he says after another minute.
While I'm waiting at the elevator, Robert comes over. "You do probate?" he asks me. "I need a probate lawyer."
If you're a judge, here's the trick about dealing with a defendant who's not a citizen: just read the language contained in RC 2943.031(A). If you do, end of story. If you don't, well... that's when we get into "substantial compliance."
As might be expected, the Supreme Court Nine found it more fitting to engage in the traditional holiday gluttony than to provide me with cases to write about. The cholesterol-laden Court will have oral argument this week in the Phillip Morris case out of Oregon (previous discussions on this blog here). The Court has vacated the $79.5 million punitive damages award against the tobacco company twice before, but each time it's been reinstated by the Oregon courts.
Speaking of the Supreme Court, the LA Times ventures some guesses on whom President Obama might pick for the Supreme Court, and another commentator suggests that Obama might break with recent tradition and select a non-judge for the Court.
Nothing from the Ohio Supreme Court last week either, so let's get to the courts of appeals...
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