April 2009 Archives
One conversation I never had with my kid over dinner: "So, honey, anything happen in school today?" "Yeah, I got strip-searched."
I'm not sure what all the signs of the Apocalypse are, but right after Pestilence and Famine has got to be Antonin Scalia providing the majority for a pro-defendant 4th Amendment decision.
Slim pickings -- only a dozen or so cases. A lesson (actually two) for appellate lawyers in the necessity of reading the journal entry you're appealing from, the fact that the old line "just when you think you're out, they pull you back in" applies to prison, too, and a reminder that the "plain feel" doctrine describes more than my college dating philosphy are on tap this week.
Nothing from interest out of Columbus, except for the usual spate of disciplinary decisions, like this one, which helpfully informs us that if you're going to forge a judge's signature on a journal entry granting occupational driving privileges, you need to come up with a better excuse than "I wanted to show my client what one looked like."
The US Supreme Court was a good bit more active, coming down with the decision in Arizona v. Gant, which I'll discuss on Wednesday, and holding oral arguments in several key cases, such as one involving the strip-search of an 8th grader, which I'll discuss on Thursday. There are still several key cases which were argued last fall, and could come out at any time, including the one involving the FCC's "fleeting expletives policy," discussed here, and the case concerning whether Crawford v. Washington applies to laboratory reports, which I discussed here. And SCOTUSBlog has some interesting stuff on whether the 2nd Amendment, as interpreted by the Court last year in District of Columbia v. Heller, will be applied to states and localities: the 9th Circuit held that it should be, and there's a case out of New York involving nunchakus, of all things, where cert is being sought.
It's been two weeks since the last update, so there's a lot of court of appeals stuff to wade through. Let's get to it...
Retro Week here at the Briefcase is almost over. Got the briefs done, and next week we'll go back to a full schedule, which will include a look at the Gant decision, the oral argument in the Supreme Court case on strip-searching school students, and the possible ramifications of its decision earlier this year in Oregon v. Ice to consecutive sentencing in Ohio.
One other decision the Supreme Court made this year was to close the chapter on the Phillip Morris case, where a smoker's family in Oregon got an award which included $80 million in punitive damages. The Court had reversed the case twice before, but finally allowed the verdict to stand on state law grounds. Here was my post about the case's first trip to the Court, back in October of 2006:
Today's Moment of Duh comes courtesy of the plaintiff's decedent in the case of Phillip Morris v. Williams, scheduled to be argued soon before the US Supreme Court:
Jesse Williams rationalized about the dangers of smoking cigarettes for more than 40 years. In part, he trusted the tobacco companies when they said that the link between smoking and lung cancer had not been proved. But when Williams was diagnosed with inoperable lung cancer in 1996, he told his wife Mayola, "Those darn cigarette people finally did it. They were lying all the time."
Williams died, and his widow filed suit against Phillip Morris; in 1999, a jury awarded her $820,000 in compensatory damages and $79.7 million in punitive damages. The Oregon Supreme Court, citing the tobacco companies' lengthy history of "reprehensible conduct," upheld the judgment. Now it's on to the Supreme Court, which a few years back ruled that punitive damage awards have constitutional ramifications. In that case, a doctor was awarded $4 million because of a lousy paint job on his BMW, and the Court threw it out, saying that an award of that magnitude for that minimal an injury violated due process.
I'm not going to get into that. As the article I cited at the top of this post points out, despite the wailing and gnashing of teeth to the contrary by the "tort reform" lobby, awards of punitive damages are extremely infrequent. And I'm certainly not going to shed tears for the tobacco industry, the executives of which should be whiling away their time trying to figure out which particular circle of Dante's Inferno they'll be consigned to upon their demise.
But with all due respect to the Widow Williams, anyone who in 1996 doubted the link between cigarettes and cancer probably believed that the Lung Fairy would come and take his damaged one away and bring him a new one.
See, this is the problem that lawyers have. We know all the arguments. If someone says that punitive damages are a problem, we can point to how infrequent such awards are. When newspapers write articles about the medical malpractice crisis, a few days later there are letters in the forum section from lawyers pointing out that the insurance companies are raising their premiums not because of out-of-control malpractice awards but because of their losses in the stock market. When someone at a party mentions the McDonald's coffee case, a good lawyer can point out the salient facts -- McDonald's had hundreds of prior complaints about how hot its coffee was, the woman was horribly injured, she offered to settle for her medical expenses -- between sips of his Cabernet.
And it doesn't really matter, because we think like lawyers and people think like people, and it's not the same thing any more. Most people know that if you drive with a cup of hot coffee in your lap, it's quite possible for bad things to happen. Most people figured out long before 1996 that cigarettes are bad for you. Most people don't buy the argument that somebody's too addicted to do anything about that, because there are literally tens of millions of people who've decided that they wouldn't smoke any more, and stopped doing it. Most people know that getting up on a ladder can be dangerous, and most people know that sticking your hand in a lawnmower while it's running not only makes you Captain of the Dummy Team, but can cost you several fingers.
Most people, in other words, still retain a concept of personal responsibility. I don't think we, as lawyers, do. In fact, the concept of personal responsiblity has become something close to anathemic for us, because we've spent the better part of the last few decades broadcasting a simple message: if something bad happens to you, (a) it's somebody else's fault, and (b) they should pay you money.
That's the main reason the public has trouble with lawyers. They see us rushing to find new ways to perform modern-day legal alchemy -- turning misery into gold -- by continuing to expand the horizons of liability beyond anything which would have been vaguely recognizable even thirty or forty years ago, and they don't see that as always being good for society.
And you know what? They've got a point.
Well, that certainly hit a sore spot. Last week, I highlighted the 8th District's decision in State v. Ollison, affirming a 3½ year sentence for a 76-year-0ld Korean War vet who'd fired a shotgun at someone who'd been harassing him, hitting the "victim" in the back of the leg with three small pellets, resulting in injury so grievous that the latter's medical treatment consisted of EMS coming out and telling him to rub dirt on it, then have his mommy spray something on it when he got home. Judge Sean Gallagher reluctantly agreed with the result, but wrote a concurrence blistering the prosecutor's office for not offering Ollison a deal.
Time for another retro post. Every now and then, instead of providing insightful analysis, I regale my readers with an episode from my own experiences in what most observers have concluded is a thoroughly undistinguished legal career. This post, from January of 2008, recounts one of them.
If you happen to need advice on how to prepare a jury in voir dire for the fact that your client's a transvestite, I'm the go-to guy there.
Had to take time out for this breaking news. This morning, the Supreme Court released one of the most significant 4th Amendment cases in the past several years. Arizona v. Gant, which I discussed back here, involved the question of whether the police can search a car incident to the driver's arrest, if the driver has been removed from the vehicle and is sitting, handcuffed, in a police car. Surprisingly (to me at least), the Court affirmed the grant of the motion to suppress. Even more surprising was the lineup: Scalia and Thomas joined Souter, Ginsberg, and Stevens in the majority, while Breyer and Kennedy joined Alito and Roberts in dissent.
You can read the decision here. I'll have a full post on it later this week or early next. The regular weekly 8th District roundup is below this post.
A real live post this time. No lifelines to civil attorneys who haven't learned the rules, a split in search and seizure decisions, and three dissents in criminal cases, doubling the amount for the entire year. That, and some reminders to trial judges not to get too cute, are on tap this week down by the lake.
Yep, it's time to stroll down Memory Lane this week at the Briefcase. Because of those two nasty briefs still lingering on my desk, as I mentioned on Friday, I'm only going to have time for one, maybe two "real" posts this week. (Looks like one of them will be tomorrow's regular feature, "What's Up in the 8th.") Instead, I'm going to be reposting some of the stuff I've done over the past three years, some topical, some not. First up, let's take a look at some pictures of nekkid women. Well, one, at least.
Back in October, the US Supreme Court heard oral argument in FCC v. Fox, concerning the FCC's "fleeting expletives" policy; I discussed the lower court's decision here, and the oral argument here. The Court hasn't ruled on the case yet, but when it does, it will also affect the FCC's ruling in the famous Janet Jackson incident, which I discussed below:
Just like people of our generation remember where they were the day John Kennedy was shot, and of the generation prior to that remembered where they were when Pearl Harbor was bombed, the current generations will no doubt remember where they were on September 11, 2001, and on February 1, 2004.
What's that? February 1, 2004? Yes, that was the date of the infamous Super Bowl XXXVIII halftime show, featuring Janet Jackson and Justin Timberlake, the horrible denouement of which is recounted in vivid detail in the 3rd Circuit's opinion the other day in CBS Corp. v. Federal Communications Comm.:
Well, here's the deal, gang. I've got briefs due in the Supreme Court and the 8th District next Friday, and despite my hopes to the contrary, it doesn't look like they're going to write themselves. (If you're waiting for me to do one of those self-help books, like "Eight Tips from Highly Organized and Successful People," keep waiting. Mine would probably be entitled, "If It Weren't for the Last Minute, I Wouldn't Get Anything Done.")
So I'm only going to have time to do a couple of posts next week, if that. I may do a case update on Monday, or the 8th District roundup on Tuesday, but that depends on what happens there: right now, the 8th District is showing only five new decisions, and the only case announcement on the Supreme Court site is the dog-bites-man "Attorney Suspended from Practice." The US Supreme Court resumes on Monday after the Easter Break, so maybe they'll come up with something I can write about. (Speaking of Easter, here's Reason No. 17 that I'm going to Hell: on Monday, somebody asked me how my holiday had been, and I had to think about it before I realized what he was talking about. Not the most religiously observant person... I'm hoping I'm consigned to something no worse than Dante's Fifth Circle, because things get pretty dicy below that: the Infernal Furies show up in the 6th, and in the 8th, you're forced to spend eternity watching an endless loop of Adam Sandler movies.)
I realized the other day that I've got a blogiversary coming up: On May 14, I'll have been doing this for exactly three years. (My very first post amply foreshadowed the quick wit and clever insights I was bringing to the legal analysis table .) So I'm going to do what Rush Limbaugh does when he goes on vacation. No, silly, I'm not going to feed my oxycodone habit; I'm going to recycle some of my previous posts. One of them will even feature Janet Jackson's breast. Another reason to choose life.
And if something notable in the legal world does happen, I'll be all over it like a cheap suit, which those who have seen my wardrobe would attest is a particularly apt metaphor.
Catch you then.
The lead opinion in State v. Ollison from the 8th District last week doesn't give any clue that the case is out of the ordinary. Ollison and his girlfriend, Barbara Williams, lived in a trailer in Cleveland. They were acquainted with Moore, and let him sleep in a car on the property. The relationship with Moore grew contentious -- according to Ollison and Williams, Moore broke into the trailer, set Ollison's truck on fire, and threatened them and shouted obscenities whenever he came by. One day he did that, and Ollison had had enough, and got his shotgun. Moore started walking away, but Ollison fired and hit him in the back of his legs.
In a bench trial, the judge found Ollison guilty of the lesser offense of aggravated assault, and gave him the minimum six month sentence, plus the three years for the gun spec. Ollison argued on appeal that he should have been found guilty of negligent assault, the court properly noted that there wasn't anything negligent about what he did, and that, as they say, is that.
And then Judge Gallagher does a Paul Harvey imitation in his concurrence, and gives us "the rest of the story."
When is a sentence not a sentence? How does a court overrule a case without doing so? Which came first, the chicken or the egg? The Ohio Supreme Court provided answers to two of these metaphysical conundrums last week; sadly, the chicken/egg one, which has always bedeviled me, was not one of them. In doing so, the court re-examined two issues which have bedeviled them.
Eric "Big Willie" Wilson reacted the way one might expect a drug dealer who's just been robbed to react: he got out of his car and chased James Yhonquea, the guy who'd robbed him, down the street. The two exchanged gunfire before Wilson caught up with Yongquea, shot him in the back, and retrieved his drugs. Yongquea lived; unfortunately, a 12-year-old who'd been caught in the crossfire did not, and last week the 8th affirmed Wilson's conviction for involuntary manslaughter, despite the fact that it was Yongquea's shot which took the girl's life.
A light week. Nothing notable from DC. The Columbus Seven handed down a couple of significant decisions, which we'll talk about on Wednesday. The weekly spate of disciplinary cases features this one, in which the panel recommended suspension for six months, the board upped that to two years with one stayed, and the Supreme Court says that's not enough and imposes an indefinite suspension. Chief among the lawyer's sins was Abe Lincoln's maxim about representing oneself: the lawyer did just that in his divorce case. The court found disciplinary violations from the attorney stopping payment on a check for an expert witness' deposition, and engaging in various legal shenanigans to avoid paying child support. Of course, it didn't help that the lawyer also did things like hold himself out as the partner of a lawyer who'd died two years earlier, and accepting fees while he was already suspended.
Light week in the courts of appeals, too, which finds only 50-some decisions...
If you needed to know a single fact to give you insight into the American character, it is that John Wayne was still the most popular actor in this country twenty years after his death.
The cops did a pretty thorough job taking down Eddie Coleman for trafficking drugs. Each of the search warrant affidavits for the two houses Eddie used is 27 paragraphs long. The detective spends the first seven reciting his qualifications, and then gets down to business: there's a "confidential reliable informant" who's told him that Eddie is dealing, where he's staying, and the car he's driving: A gold Cadillac Escalade with a particular license plate number. The cops set up a controlled buy, and sure enough, along comes a black male driving a gold Cadillac Escalade with that license number. The deal goes down, the detective does some more checking, including running the license plate, and it comes back to Coleman.
One problem: it turns out the detective never saw that license plate on Coleman's car, at least not before the search, which occurred on May 31, 2007. The records of the car dealership show that Eddie had temporary tags on his car at that time, and didn't pick up his plates until over a week later. Last week, in State v. Coleman, the 8th District said that didn't matter.
If attorney malpractice insurance rates increase anytime soon, it won't be because of the 8th District. I'm not a stickler for rules, but it's becoming increasingly clear, based on a couple of decisions last week, that the 8th isn't, either.
Yep, Marlon Brando's "the horror... the horror..." accurately encapsulates the 8th's criminal decisions last week. Fourteen criminal decisions, and the best defendants can muster is a sentence vacated so that the trial court can tell the defendant that post-release controls are discretionary, not mandatory. The court was much more forgiving of civil attorneys who ignore the rules of procedure, a subject we'll turn to tomorrow. In the meantime, a survey of the wreckage...
A couple of decisions, though nothing major, from the banks of the Potomac: in 14 Penn Plaza v. Pyett, the Court held that collective bargaining agreements can require employees to submit age discrimination claims to arbitration, rather than filing suit, and in Harbison v. Bell, ruled that lawyers appointed by Federal courts to handle death penalty defendants' habeas claims can also represent them in state clemency proceedings.
Down in Columbus, sovereign immunity was again the issue in Doe v. Marlington Local School Dist. The plaintiffs claimed that their daughter was sexually abused on a school bus because the driver was inattentive, but the court held that didn't matter; the exception to immunity for "negligent operation of a motor vehicle" applies only to the actual driving of the bus. In State v. Rivas, the court decided that if the prosecutor gives you a written transcript of the instant messages from a computer hard drive, that's all you're going to get; you're not entitled to have your expert inspect the actual drive unless you can make a prima facie showing that the data the state provided is false, incomplete, or adulterated. And six more disciplinary cases, the most unusual of which is Disciplinary Counsel v. Shaver. Shaver came up with a way of minimizing the costs of transporting client files when moving his office: he threw some in a dumpster, and left another twenty boxes of them sitting next to it. It wound up on TV -- what doesn't nowadays? -- and that earns him a public reprimand.
On to the courts of appeals...
We haven't done a Friday Roundup for a while, where instead of launching into a jeremiad against some recent court decision, I'd simply surf the web and mail it in, extending myself only so far as to make some snarky comment or two. Well, tough week, so that's all the loving I'm showing today.
Just the facts, ma'am: About 8:30 on a July evening last year, the cops spotted eight males "loitering on a vacant property." The officers approached the males and asked them for ID. My client, who we'll call Ralph, said he didn't have any. The cop asked, "Do you have anything on you that could hurt me?" Ralph says, "Just a vitamin pill for my finger." The cop patted down Ralph, felt the alleged pill through his pants pocket, and reached in and retrieved it. It's a half-pill of ecstasy, which gets Ralph indicted for felony drug possession.
At the arraignment, Ralph draws the most law-and-order judge on the bench. I tell everybody that the judge is going to toss the search, and they laugh at me.
Your client's on trial for having a weapon under disability. No, that doesn't mean he carries a Glock, but gets to park in the handicapped spots, it means that he's been convicted of crimes involving drugs or violence, making it illegal for him to have a gun. The big problem in defending a case like that is the jury gets to hear about those prior convictions. Sure, the judge tells the jury that they can consider the priors only for purposes of determining whether the defendant was prohibited from owning a gun, not in determining whether he's guilty of the offense he's charged with, but simply reading that sentence should put to rest any hopes of the efficacy of such an instruction.
Jermaine Baker was in just such a situation, so he decided to play the Old Chief card.
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