February 2009 Archives
With apologies to Bob Dylan...
I'll be in Phoenix next week. About three years ago, I spent the entire winter in Cleveland. I swore then that if I had crawl south over broken glass to get out of here sometime during that wretched stretch between mid-October and the end of April, I would. The Briefcase will be closed down for the week. I'll be back on March 9 to talk about more law, and maybe a rundown of the Indians' spring training.
Now the rainman gave me two cures
Then he said, "Jump right in"
The one was Texas medicine
The other was just railroad gin
And like a fool I mixed them
And it strangled up my mind
And now, people just get uglier
And I have no sense of time
Cleveland's not an easy town to live in. The winters didn't used to bother me as much as they do now. My wife says it's like having another job: you get up in the morning, put on your boots, bundle up, go out, brush the snow off your car, scrape the ice off the windshields, try and navigate the roads...
It's not an easy town to practice law in, either, especially criminal law. A few weeks back, the sheriff laid off eighteen deputies, and changed the visitation hours for the jail. The only times for visitation now are 8:30 AM to 11:00 AM, and 1:oo PM to 4:30 PM, Mondays through Fridays.
That's not just for family and friends, but for lawyers, too. You can't visit your client in the evening, or on weekends. If you're trying a case where your client's in jail, that essentially means you can't see him outside of trial. I told my wife about this, and she said, "Doesn't that violate their right to counsel?" My wife is smarter than the sheriff.
Of course, when you do get in to visit, attorney-client confidentiality isn't exactly foremost. There are two -- count'em, two -- rooms in the entire jail of 1100+ prisoners which allow private contact visits. Otherwise, you're conversing with your client over a phone with a glass window between you, and with the family of God knows who sitting next to you and talking to their loved, albeit incarcerated, one.
It's no day at the beach even if your client's not in jail. There are four little conference rooms on each floor of the Justice Center, maybe ten by six. If you find one with a couple of chairs, you're lucky; usually, you wind up trying to explain what's going on to your client while you're both standing there, him gazing down at a rug scarred by cigarette burns, your explanation interrupted by another lawyer poking his head in to see if the room's free. That's after you and your client wait forty-five minutes to catch an elevator up to the courtroom.
Whoops, did I say four rooms? On a number of floors, all four have been taken over by the prosecutors office as part of their reorganization in how they handle cases.
Now the bricks lay on Grand Street
Where the neon madmen climb
They all fall there so perfectly
It all seems so well timed
And here I sit so patiently
Waiting to find out what price
You have to pay to get out of
Going through all these things twice
Part of the blame for this has to go to us. Criminal defense lawyers, for a variety of reasons, aren't particularly good at organizing, and the motto of the criminal defense bar in this town should be BOHICA -- bend over, here it comes again. Back in 2000, when Cleveland first ran into the recession, the county cut appointed counsel fees by ten to twenty percent, making them the lowest of any urban county in the state. Ooops, they already were. For some reason, no judges or prosecutors volunteered to take a ten percent pay cut, but we were told to keep quiet and the cuts would be restored. We did, and sure enough, they were -- last September. About five years ago the ACLU offered to file a challenge in Federal court to the fees, if it got the backing of the local bar. It didn't; we didn't want to make waves. When a fellow defense attorney got royally screwed by being turned down for additional appointed fees, getting $900 after spending over five weeks in trial, there was talk about boycotting the assignment system. That went nowhere.
And now this. The local criminal bar association wrote a letter to the administrative judge, and we got a response back from the sheriff saying that they never intended to cut back on attorney visitation hours, no siree. Just show up on the weekends and they'll make the necessary arrangements for a visit, or at least will try to. What's more, the administrative judge told us that the prosecutors would be limited to having one conference room per floor. That means we still get 75% of the rooms we had before, to handle the dozens of pretrials that take place on each floor every day.
I'm looking forward to a week off from all that.
Oh, mama, could this really be the end
To be stuck inside of Mobile with the Memphis blues again.
Five weeks ago I chronicled the travails of Portage County Municipal Judge John Plough, who'd been chastised twice within a fortnight by the 11th District court of appeals. The first was for not responding to that court's orders to provide the record for an appeal. The second was for holding Brian Jones, a public defender, in contempt for refusing to proceed to trial on a case he'd been assigned just the day before. I'd also mentioned that the Disciplinary Counsel was investigating Plough's conduct in a number of cases, based on the complaint by a fellow judge, no less.
Last Tuesday, the prosecutor's office filed an appeal in Jones' case. Two days later, the Disciplinary Counsel announced that it had concluded its investigation and filed six charges against Plough.
As they say, timing is everything.
I've been a frequent critic of appellate courts taking all the detritus from a criminal trial and sweeping it under the carpet called "harmless error." Sometimes, though, that's the better approach, as evidenced by a couple of 8th District decisions last week.
Oh, happy day, at least for some of you Cuyahoga County denizens who've gotten mail notifying you that one of the city's traffic cameras have caught you doing 40 in a 35 mph zone, a sin which can be expiated by mailing off a check for 120 bucks. Turns out that when the city crafted the statute enabling the use of the cameras, they didn't write a definition of "owner" which included people driving leased or rented vehicles. A crafty lawyer -- but I repeat myself -- over at Dickson & Campbell caught the mistake, and last week the 8th District tossed his two tickets, leaving the city open to a class action lawsuit over the loot it's already garnered from previous lessees.
No news on the Potomac, but the Court will hear oral argument today in Rivera v. Illinois, which presents an unusual fact pattern and an interesting issue. The judge had overruled a defense peremptory challenge in voir dire, holding that it was discriminatory (yes, Virginia, Batson applies to defense challenges, too), and seated the juror. The courts later determined that the judge was wrong to do so. Does that require automatic reversal of the jury verdict? Although the Supreme Court has never ruled on the issue, most courts have held that a Batson error isn't subject to harmless error analysis. (In the only Ohio case that I could find which discussed the question, the 2nd District ruled that harmless error analysis was proper, but that involved a case where the disputed juror was seated as an alternate, and never participated in deliberations.) The normal Batson error, of course, involves dismissing a juror who should have been seated. This presents the flip side of that issue.
Down in Columbus, the only decision of note -- to me, anyway -- was State v. Brewer. Brewer's conviction for gross sexual imposition had been reversed because of improper admission of hearsay testimony, and he claimed that without that testimony, the evidence was insufficient to convict him, and double jeopardy barred his retrial. The 8th District didn't buy it, and the Supreme Court affirms, holding that in reviewing the sufficiency of evidence, the appellate court can consider all the evidence, including that which was improperly admitted.
So, let's take a look at what happened in the courts of appeals...
Mind games. I've mentioned judges sentencing on acquitted conduct before -- enhancing a sentence based on conduct the defendant had never been charged with, or had even been acquitted of, but a Federal judge in Illinois went one better: he increased the sentence based on a finding that if the defendant had been out on bail, he would have tried to murder someone. The 7th Circuit decides that's just a bit too over the top, and reverses.
Overheard. Line of the week, one lawyer talking about another lawyer: "He lies so much he had to hire someone to call his dog."
Overload. Several Ohio Supreme Court justices have implored the General Assembly to do something about sentencing in Ohio. Now the plea comes from another source: the Ohio prisons chief:
Ohio's prisons director says unless sentencing guidelines are changed, the state's inmate population will reach 60,000 within a decade.
Ohio prisons are at 132 percent capacity with 50,719 inmates. Collins told lawmakers that without changes, Ohio would have to spend about $1 billion by 2018 to build extra space for the increased number of inmates.
Overpaid? Snaps to my main man Chief Justice Tom Moyer, who managed to guide the Ohio Supreme Court through the year at $1.5 million under budget, according to this press release. Good news for bad times; the cratering economy has caused even Moyer's USSC counterpart, Chief Justice Roberts, to tone down his annual plea for more money for judicial salaries. This may not merely reflect sentimentality toward the four million people who've lost their jobs over the past year; as the article notes, there's not exactly a paucity of people willing to take a job which allows them to retire after fifteen years at full salary for life. Plus, as this article notes, recent research questions whether judges are really leaving the bench because of the low salaries, and also indicates that salaries don't have much relationship to judicial performance.
Of course, some judges find unusual ways to augment their incomes; as this article relates, two juvenile judges in Pennsylvania did so by getting kickbacks for sentencing kids to two privately run youth detention centers.
Overstressed. Of course, judges aren't the only members of the legal profession feeling the economic pinch. $1000 per hour billing rates appear on the way out, and in fact there's some question of whether the billable hour will even survive. The market for those coming out of law school is pretty grim, with jobs in the legal sector down over 1% since a year ago. This prompted the local fishwrap to write a story on depression in lawyers. I started to read it, but it bummed me out so much I couldn't finish it.
As most of my regular readers know, we've been having a pitched battle up here in Cuyahoga County over open discovery in criminal cases. I have not been a dispassionate observer; I have regularly pilloried Cuyahoga County Prosecutor Bill Mason for his opposition to it. Type "open discovery" in the search bar up on the right and you'll find half a dozen or more posts in which I've accused him of obstructionism and derided him for claiming that his opposition stems from concern for retaliation against victims and witnesses. Typical is this post, in which I engaged in a lengthy exchange in the comments section with an anonymous prosecutor, virtually ridiculing him for his belief that Mason's opposition stemmed from anything other than a desire to exert as much control over criminal cases as he has heretofore.
Last fall the Cuyahoga County Common Pleas judges adopted a local rule allowing open discovery in criminal cases. I was getting all ready to pen yet another tirade over what I anticipated would be Mason's latest legal maneuver to avoid allowing defense lawyers access to the information necessary to effectively represent their clients.
Instead, two weeks ago Bill Mason announced that his office would be implementing a procedure which could serve as a model for discovery for prosecutors around the country.
Sometimes you can get away with gaming the system. Sometimes not, as the defense found last week in State v. Gilbert, a case involving a subject not frequently encountered by criminal lawyers: testimonial immunity.
Sometimes reading cases teaches me stuff I didn't know. Sometimes it just reinforces things I already knew. This is what I learned/relearned from the 8th District's decisions last week.
The only news from DC is good news -- the latest update on Justice Ginsberg's cancer surgery, which found no metastasis. Not a whole lot going on downstate, either. If you're thinking of becoming a lawyer, go light on the gas pedal: the Supreme Court disapproves a bar applicant because of, among other things, sixteen speeding tickets, four of them incurred after he'd filed his registration application. Then again, those "other things" included convictions for assault, disorderly conduct, and underage consumption of alcohol. On the bright side, if he passes the bar exam in 2010, he'll be able to set up a boutique practice in traffic law.
Other than that, and a few mundane disciplinary cases, the only decision of note was In re Burt, which involved a juvenile who'd been adjudicated of being delinquent, with the trial court ordering her to be good at school and home. She wasn't, so another delinquency case was filed against her, this time for violating the previous court order. She claimed that it should have been treated as a probation violation of the first case, but the court says no, it can be handled as a new delinquency complaint, too.
In the courts of appeals...
You're representing a defendant in a child rape case. The eight-year-old victim has testified in graphic detail as to exactly what your client did. You know the jury's sitting there thinking that the kid has to be telling the truth, otherwise how would she know this stuff? You know that the child has an alternative source for this knowledge: she was molested by someone else a year or so earlier. But when you attempt to introduce the evidence of that, the judge refuses, because it doesn't fall within one of the exclusions in the rape shield statute, RC 2907.02(D).
That's the wrong answer, as the 6th District's decision in State v. Ector last week indicates.
Criminal appellate lawyers can tell you how difficult it is to get a conviction reversed, even under the best of circumstances. Questionable police testimony is routinely accepted to overrule motions to suppress searches or statements, violations of evidentiary rules are disregarded under the rubric of "harmless error," and courts regularly indulge in fictions, such as that jurors always abide by curative instructions. It's rare to see a case get reversed at all, much less to see a court reverse a decision when it really didn't have to. But that's what happened not once, but twice last week. I'll talk about one today, and the other, involving the rape shield statute, tomorrow.
Thirty-three decisions last week, over two-thirds criminal, and good lawyering abounds.
One other decision last week from the Ohio Supreme Court that I skipped over yesterday: in State v. Malone, the court holds that a conviction for intimidating a witness under RC 2921.04(B) requires that criminal proceedings have already been insitituted. That's not required for conviction for intimidating a victim.
On to the courts of appeals...
Nothing doing in DC, except news of Justice Ginsberg's surgery for pancreatic cancer. (SCOTUSblog explains why this might not be as bad as it sounds.) Meanwhile, after listening to me whine for the last month about the OSC's paucity of decisions, the Moyer Gang decides to shut me up by issuing ten opinions. I'll talk about those today, and hit the court of appeals cases tomorrow.
This could be one of the more significant US Supreme Court terms for criminal law in recent memory. We've already had two major decisions on 4th Amendment law, Herring v. US (discussed here) and Arizona v. Johnson (here), and in the pipeline is Arizona v. Gant (here). This past week, the Court had oral argument in two more. Boyle v. US concerns the issue of what constitutes an "enterprise" for purposes of the Racketeer Influenced and Corrupt Organizations Act (RICO); the defendant argues that the enterprise must have some ongoing structure and existence beyond the commission of the racketeering acts. As I mentioned earlier, given the frequency of RICO prosecutions, this will be a signficant decision.
Timothy Evans ran into some bad luck on November 18, 2005. His simple purse-grab outside a store in Cleveland was foiled because the woman just held the purse tighter. He told her he had a gun, but it didn't have the desired effect; "Well, you know what? You're going to have to use it," the victim replied. When another customer saw the fracas and sounded the alarm as the two fought, Evans took off.
His luck got worse when he got caught two months later and indicted for aggravated robbery. It improved when the judge, after a bench trial, acquitted him of the aggravated robbery, finding he didn't have a gun, but convicted him of simple robbery, on the theory that he committed robbery by threat of physical harm.
And Evans hit the jackpot a year ago when the 8th District vacated his conviction, holding that robbery wasn't a lesser included offense of aggravated robbery.
You're representing Joe in a personal injury action, and the other side sends you a medical authorization for the records of Joe's treatment with Dr. Smith, his family physician of the past ten years. But when you present the authorization to Joe, he tells you that, in addition to treating him for his back injuries, Dr. Smith also treated him for an STD a few years back. That's guaranteed to play hell with your loss of consortium claim for Joe's wife, no? What to do, what to do...
Bad week for criminal defendants, a much better one for civil plaintiffs; in twelve criminal cases, the meager results are the vacation of a plea and a reversal because the judge failed to merge certain offenses.
It's not uncommon for judges to instruct counsel for the prevailing party in the case to prepare the journal entry, but the teaching of Disciplinary Counsel v. Stuard is that it's a no-no to meet with counsel ex parte to help them prepare it. This wasn't an ordinary case, either; after the jury handed down a death sentence, the judge asked the prosecutor to prepare the court's opinion, and gave him his notes to help the prosecutor do that. It's kind of hard to understand why it didn't occur to either of them that this wasn't kosher. They each get a public reprimand.
Other than a handful of other discipline-related decisions, nothing from Columbus. Down in DC, there was oral argument on a trio of criminal cases, which I'll write about later this week. The only decision was a summary reversal in a Federal sentencing case, Nelson v. US. Two years ago in Rita v. US, (discussed here), the Court held that a sentence within the Guidelines was presumptively reasonable. In Nelson, the Court repeats what it decided in subsequent cases: that presumption applies only to appellate review. In fact, what warrants reversal in Nelson is that the trial judge treated the guidelines as presumptively reasonable, and you can't do that.
On to the courts of appeals...
View more posts in the Archive »