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May 2009 Archives

Friday Roundup

All of DC is abuzz about President Obama's nomination of Sonia Sotomayor as the next Supreme Court Justice.  Right-wing groups inveighed about her use of the word "empathy" as a factor in judicial decision-making, the gun rights crowd as labeled her an "enemy of gun-owners" by virtue of a per curiam decision she participated in rejecting a post-Heller argument that the 2nd Amendment was incorporated by the 14th and applied to the states, and even abortion rights supporters have expressed unease that some of her decisions don't appear to be as pro-choice as they could be.  Most of this is nonsense, of course, and it should be kept in mind that much of this is driven by money:  the various groups have found that court confirmation fights are a great way of energizing their bases and getting them to send in contributions.

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Open discovery and no discovery

Open discovery is coming sooner than we expected.  And the 8th District upholds a judge who decides that discovery wasn't forthcoming enough...

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What's Up in the 8th

The latest trend in ineffective-assistance claims, why bother with supreme courts, traps for unwary defense attorneys, and our new (and perhaps one-time) feature -- the Weekly "It Wouldn't Be Harmless Error If..." Quiz.   All that and more from the 8th this week.

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Case Update

Nothing out of Columbus, and the only point of legal interest out of Washington is this article, reporting a study which shows that the side which gets asked the most questions in a Supreme Court oral argument is most likely to lose.  The other Court-related news is the scuttlebutt that President Obama will be announcing his choice to replace Justice David Souter this coming week.  Despite the deluge of letters and emails from my legion of faithful readers, it doesn't look like it's going to be me.  So let's just get to the courts of appeals and be done with it...

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Friday Roundup

Hobson's choice.  Cleveland Cargile was busted on a robbery charge back in 2007.  Just before taking him into the jail, the cops told him that carrying drugs into the jail is a crime, and that if he had any on him he'd better 'fess up now.  Cargile decided not to tell them about the 2.1 grams of marijuana hidden in the cuff of his pants pocket, and instead denied having anything.

Bad choice.  The drugs were discovered during the booking, and instead of a minor misdemeanor, Cargile was charged with illegally conveying drugs into a detention facility, in violation of RC 2921.36.  Cargile was briefly rescued from the consequences of his decision last year by the 8th District, which vacated his conviction, holding that since his going into the facility wasn't a voluntary act, he couldn't be convicted. 

Several other courts, including the 8th in prior cases, had ruled the same way, but on Tuesday the Supreme Court heard argument on Cargile, and it doesn't look good.  Defense counsel not showing up for the argument didn't help, but from the tone of the questions, it's not likely to have mattered.  A couple of justices, Pfeifer and O'Donnell, seemed to latch onto the dilemma a defendant in that situation faces -- either incriminate oneself or run the risk of prosecution of an additional offense -- but few seemed willing to go beyond the words of the statute:  all the statute requires is that a defendant "knowingly" convey the drugs into a detention facility, and that's what Cargile did.  What's particularly maddening is that Cargile could have had almost 50 times as much marijuana as he did, and it still would have been a minor misdemeanor, with a maximum $100 fine.  Instead, he'll get stuck with a 3rd degree felony.  And the ultimate irony is that he was acquitted of the robbery charge that was the basis for the arrest.

Coming to a city near you... Courtesy of Sentencing Law & Policy comes this story from NPR about the consequences of Miami's sex offender residency restrictions:

In Miami, a causeway in the middle of Biscayne Bay has become home to one of the county's least desirable populations: sex offenders. What began a few years ago as a stopgap solution has become de facto public policy.  For sex offenders with few resources who want to stay in Miami, there's just one option: an encampment of tents and shacks on the Julia Tuttle Causeway.

The "Google mistrial."  I make it a point any more in trial to ask the judge to instruct the jury not to attempt to access any information about the case on the Internet.  I learned that from sad experience:  last year, I had a child rape case in which the first question from the jury was that someone had checked out the Revised Code online, and wanted to know why the defendant hadn't been charged with sexual misconduct with a minor.

That pales in comparison to this story from the Times (hat tip to CrimProfBlog):

Last week, a juror in a big federal drug trial in Florida admitted to the judge that he had been doing research on the case on the Internet, directly violating the judge's instructions and centuries of legal rules. But when the judge questioned the rest of the jury, he got an even bigger shock.

Eight other jurors had been doing the same thing. The federal judge, William J. Zloch, had no choice but to declare a mistrial, a waste of eight weeks of work by federal prosecutors and defense lawyers.

Maybe he just didn't have a computer.  Then there's this story:

A Hillsboro, Ore., man who left jury duty after lunch because he was "extremely bored" was due back at the courthouse Tuesday to be arraigned on a charge of contempt of court.

A police report says officers found 25-year-old Grant Faber near his home earlier this month and asked why he skipped out. He said he was bored, and "just couldn't take it" anymore.

The wife and I will be decorating our Memorial Day tree this weekend, and there's always the last-minute flurry of Memorial Day gift shopping.  I'll be back on Tuesday with the Case Update.

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Conceding error

One of the things our adversarial system of justice trains attorneys to do is practice a "no-quarter given, none-asked" form of litigation:  a lawyer may refrain from making certain arguments because he believes that they aren't credible, but rarely will he concede that the arguments he has made are wrong.

The one exception to that is the prosecutor's office.  Since their obligation is supposedly to justice, not to a particular client, they are not only allowed, but required, to concede when their position is clearly in error. 

That happens a whole lot more in theory than in reality, but it happened last week in the 8th District's decision in State v. Johnson, and I'm still trying to figure out why.

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Trial strategy and IAC claims

Trial lawyers in Cleveland are an incompetent lot.  At least, that's what you'd think from reading the arguments of appellate lawyers.  Ineffective assistance of counsel claims figured prominently in a third of the criminal decisions out of the 8th District last week.

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8th District Roundup

If you're looking for me to provide my weekly dose of criticism for the 8th's decisions, look elsewhere:  28 opinions this week, not a dud in any of them, and several of them providing lengthy, thoughtful opinions on both civil and criminal matters.

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Case Update

Well, this makes it easy.  Oral arguments are done for the term in DC, and no new decisions were announced this past week.  About the only news -- and I'm really plumbing the depths here -- is a cert filing in a case out of Washington by the law firm which runs SCOTUSblog and which, they tell us, raises the issue of "whether the Double Jeopardy Clause prohibits retrial on a charge when the jury is instructed to begin deliberations with the most serious charge but proceed to a less serious charge if it cannot agree, and the jury finds the defendant guilty of a less serious offense without returning a verdict on the more serious one."  Ohio is one of the twenty-three states which don't require a jury to come to a unanimous verdict on the greater offense before moving on to the lessers.  There's some dictum in a few Ohio cases to indicate that conviction of a lesser offense implies acquittal of the greater, but it's nothing solid, so we'll see if the Supremes take this case, and what they do with it.

And absolutely nothing out of Columbus, not even the customary smackdown of a couple of miscreant attorneys.  So let's get on to the courts of appeals...

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Blogiversary

 The other day, in discussing the Supreme Court's decision on the nursing home arbitration agreement, I linked to a post that I'd done on May 14, 2006.  Other than the de rigeur welcome post, it was the very first one I did.

That's right.  Today I'm starting my fourth year of doing this.  Although it takes a fair amount of time, probably around ten to twelve hours a week, I've enjoyed it immensely.  As you may have gathered, I've got a pretty serious writing jones, and this takes care of it.  Plus, it's a nice little ego trip to have other lawyers and even judges ask me questions, thinking that I may actually may know what I'm talking about.  Essentially, this blog has vindicated my long-held belief that if you write and speak well, people will think you are a good bit smarter than you actually are.

So, in honor of my blogiversay, I'm taking the day off from heavy legal stuff.  Some notes from around the Internet...

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To wit: GUN/TOY GUN

My client "Sam" sure sounded like a badass:  four counts of aggravated robbery, each with one- and three-year gun specs, and four counts of kidnapping.  According to the police report that the prosecutor was reading me, Sam tried to hold up four people in an apartment at gunpoint.

Then the prosecutor got to the part where the "gun" Sam had was a plastic toy one.

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Nursing homes and arbitration agreements

A year ago, I wrote about the 8th District's decision in Hayes v. Oakridge Nursing Home, in which the court by 2-1 vote invalidated an arbitration clause in a nursing home contract between the home and a 94-year-old resident.  Although sympathetic to the result, I questioned the court's reasoning, especially in finding that the agreement was "substantively unconsionable" because it didn't provide for a jury trial or the recovery of attorney fees or punitive damages.  I concluded by saying,

I think the courts' heart is in the right place:  there is an inherent disparity in bargaining power between a consumer and a corporation, and that needs to be recognized.  The problem I have with the slapdash approach of coming to a conclusion and then developing the rationale to support it is that eventually this is all going to wind up in the Ohio Supreme Court's lap, and if that court has to go looking for a rationale, it's likely to look no farther than a pro-business reiteration of the "strong presumption in favor of arbitration." 

Last week, that's pretty much what happened:  In a 6-1 decision, the Ohio Supreme Court reversed and held that the arbitration agreement was valid, citing the "strong public policy favoring arbitration."

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What's Up in the 8th

On tap this week in the 8th:  F. Scott Fitzgerald's observation that there are no second acts in American lives doesn't apply to grand juries, what abuse of discretion should mean, and people you wouldn't want as neighbors.

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Case Update

The US Supreme Court has finished oral argument for the term, and about the only key criminal case still undecided is Melendez-Diaz v. Massachusetts, involving the applicability of Crawford v. Washington to lab reports.  Word is that President Obama may announce his pick for the justice to replace David Souter; a somewhat disquieting aspect of that is that he took longer to pick his dog.  That selection, of course, will initiate one of the capitol's favorite contact spectator sports:  the nominee's confirmation hearings.  The pointlessness of those proceedings was best summarized by Abe Lincoln when questioned about his nomination of Salmon Chase:  "We cannot ask a man what he will do, and if we should, and he should answer us, we should despise him for it."

Down I-71, the Ohio Supreme Court started churning out decisions again.  One was on the savings statute for wrongful death actions, which I discussed last week, and another was on arbitration clauses for nursing home residents, which I'll discuss later this week.  If you do administrative appeals, you'll want to check out Medcorp Inc. v. Dept. of Job & Family Serv., which holds that in the requirement that "the grounds of the party's appeal" has to be set forth means that parties must identify specific legal or factual errors in their notice of appeal; a simple statement that the order appealed from "is contrary to law and not supported by reliable, probative, or substantial evidence" doesn't cut it.  And in Olympic Holding Co. v. ACE Limited, the court holds that a promissory estoppel argument that the other party has breached a promise to sign an agreement can't be used if the statute of frauds requires the agreement to be in writing.

That'll come up a lot in my practice.  Anyway, on to the courts of appeals...

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Friday Roundup

Time to update you on some past stories:  what happened to Harry Ollison, what's going to happen to teens sentenced to life in prison without parole, and judicial opinions I'd like to see.

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Legislative intent

A problem with trying to determine legislative intent is that it presumes the legislature had one.   Only two justices on the Ohio Supreme Court have any prior legislative experience; one of them picked up on that problem last week in the court's decision in Eppley v. Tri-Valley School Dist.

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Hard time

Juanita Myrick had a pretty good gig going.  She worked for the Cuyahoga County Department of Employment and Family Services for 17 years.  For 14 of them, she used her position to issue herself checks -- 759 of them in all -- for public assistance benefits she wasn't entitled to.  All good things come to an end, and Juanita's did in early 2007, when an audit uncovered her fraud.  A year later she pled guilty to one count of 2nd-degree felony theft, two third-degree felony counts of tampering with records, and 23 other 4th- and 5th-degree felony counts of identity theft and unauthorized use of a computer. 

And last week, in State v. Myrick, the 8th District upheld her sentence of 20½ years in prison.

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What's Up in the 8th

Mamas, don't let your children grow up to be personal injury lawyers.  And while you're at it, you might warn them about the dangers posed by the combination of women and crack pipes.

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Case Update

Lots of news from DC, topped with the announcement that David Souter will be retiring from the Supreme Court.  For those of you with a bent for walking down Memory Lane, check out this article from the Washington Post right after Souter first took the bench:

Justice David H. Souter's moderate-sounding testimony at his confirmation hearings last September left some conservatives nervous about whether they were getting the judicial hard-liner they had been promised.

Souter's performance during his first eight months on the bench should help allay that anxiety. If Souter does not turn out to be a home run for conservatives, as White House Chief of Staff John H. Sununu reportedly predicted at the time of Souter's nomination, his votes suggest at the very least "a stand-up triple," as one court observer put it.

Well, not so much.

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A coming Ice Age?

The Supreme Court occasionally ventures out of Columbus to hold arguments in various courthouses around the state.  The venue last week was the Columbiana Courthouse, and Chief Justice Moyer began the proceedings by noting that the court was returning to Columbiana for the first time in 260 years, which was off by only a century; Ohio didn't become a state until 1803.   

The amenities out of the way, the court settled down to hear State v. Hunter, which featured the question of the constitutionality of the repeat violent offender specification.  But several comments during argument about the US Supreme Court's January decision in Oregon v. Ice raised questions about the major ramifications that decision could have on Ohio sentencing law.

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