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What's Up in the 8th

After a couple of sluggish post-holiday sessions, the 8th issued twenty decisions last week.  One we'll talk about one in more detail tomorrow.  The highs and lows for the other nineteen:

Although conspiracy is a staple of Federal prosecutions, it's fairly rare on the state level.  An exception is State v. JohnsonJohnson and two other men had been spied driving past a gas station wearing "humongous" sweatshirts, hoods, and gloves.  Cleveland's clime is not the best, but this was in June, so it attracted attention.  A police officer arrived on the scene, and saw the three men running toward the station with hoods up and masks covering their faces.  As he pulled up, the three took off.  The police found a TEC-9 semiautomatic along Johnson's path.  Johnson argued that the evidence was insufficient because it didn't show that he'd committed a "substantial act in furtherance of the conspiracy," and the court said, "Well, yeah, you did."  Johnson also raised a Colon issue, arguing that the indictment was defective because it didn't include the mens rea requirement for aggravated robbery; the court rejected that, too, holding that a conspiracy count need only include the name of the underlying offense, not its elements.

A couple more ineffective assistance of counsel cases.  In State v. Jenkins, for the second time in a month, the court reverses a conviction because the attorney didn't file a motion to suppress.  The police had stopped Jenkins on a call of "shots fired," and patted him down.  No problem, said the court.  But then reaching into his pants pocket, taking his car keys, using the remote to spot the car, ultimately resulting in a search of the vehicle, that was a problem, and the attorney should have known that.  On the other hand, in State v. Abdul, the court rejects the contention that counsel was derelict in failing to voir dire the jurors as their bias against Muslims.

State v. Houston demonstrates the virtue of perseverance.  Houston was convicted of murder and robbery in 1992, based almost solely on the testimony of  a single eyewitness who recanted at trial.  After exhausting his appeals, Houston over the years filed a motion to reopen the appeal, a petition for post-conviction relief, and finally a Federal habeas, all to no avail.  His motion for new trial in 2003, based on an affidavit from the eyewitness who now said he knew the name of the shooter as "Popeye" or "Dee," was similarly denied.  Finally, in 2007 his investigator found "Popeye" in a Georgia prison, got a picture of him and showed it to the eyewitness, who said that was the shooter.  Houston filed yet another motion for new trial on that basis, and this one was granted; last week, the court of appeals affirmed.

A reminder that failure to disclose the name of a witness in discovery doesn't necessarily warrant exclusion -- at least when it's the state doing it -- is found in State v. PutnamThe state called the SIU analyst to testify that the substance found on the defendant was drugs, the defense objected that the analyst wasn't included in the response to discovery, the judge offered defense counsel an opportunity to interview the witness before he testified, and the court of appeals said that was sufficient.

On the civil side, the moral of Mokrytzky v. Capstar is a simple one:  when the court sends out a notice of  a pretrial which says that if plaintiff's counsel doesn't show up the case will be dismissed with prejudice, and when plaintiff's counsel doesn't show up the case is dismissed with prejudice, there's not a damned thing the appellate court will do about it.  A court has to give notice before dismissing a case with prejudice for failure to prosecute, but that's all the notice it has to give.

A lot of contracts, such as the franchise agreement at the heart of Miller v. Management Recruiters, contain arbitration agreements anymore.  Miller makes clear how difficult it is to overturn an arbitration award:  the trial court's review is extremely narrow, and the appellate court's review of the trial court's decision is extremely deferential.  All this doesn't help Miller; he argues that the arbitrator failed to disclose a potential bias, in violation of the American Arbitration Association rules, and the court says it doesn't matter.  Even a violation of AAA rules isn't enough; "direct evidence that the arbitrator was biased must be shown."  It doesn't help that Miller's argument appears extremely tenuous:  the arbitrator hadn't disclosed that he represented a client in a unrelated collection case in which the opposing counsel was an attorney from the same firm representing Miller. 

One more lesson from Miller.   If you're going to have an arbitration hearing, make sure you take a court reporter along.  If you need to show that something happened during the hearing which entitles you to vacation of the award, you're not going to do it without a transcript.

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