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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.

What to do if a grand jury no-bills a case?  Take it to a different grand jury.  In State v. Brooks, the court notes the extensive case law which permits that practice, and reverses the trial court's decision to dismiss the indictment.  He had reviewed the testimony submitted to both grand juries, and determined that even less evidence had been presented to the second one than to the first.  The court notes that this doesn't matter; the case law also provides that insufficiency of the evidence isn't a ground for dismissing an indictment.

The court also reverses in State v. Pickett, where the trial judge had granted community control sanctions without first getting a pre-sentence report.  Although the State hadn't objected at sentencing, the court reversed on a plain error analysis.  A number of judges have been doing this lately, so I guess they'd better stop.  The only other reversal, this time for the defendant, comes in State v. Watson, where the court holds the evidence insufficient in a compelling prostitution case.  The State had argued that proof the defendant paid for the "life necessities" of the women -- shelter and food -- was sufficient to establish compulsion, but that argument was substantially undercut by the women's testimony that "nothing would happen" to them if they didn't give the defendant the money they earned turning tricks.

In State v. Bell, the defendant pleads guilty to domestic violence, and at the sentencing the prosecutor informs the court that while victim did not want defendant to go to prison at the time of the plea, she does now.  She does indeed address the judge, who gives the defendant two years.  The defense argues on appeal that this breached the plea agreement, which it would have, if there had been anything said at the time of the plea indicating that the victim was not seeking prison time.  There wasn't; the issue was first raised at the sentencing.  The appellate court poses an interesting question:   in light of constitutional and statutory provisions protecting victims rights, it may be illegal for the State to make promise that the victim will not speak at sentencing.

A couple of problems arise with the opinion in State v. Davidson, concerning the question of whether a 911 call should have been excluded as hearsay.  The court begins its discussion of this issue with the observation that "admission and exclusion of evidence" is reviewed under an abuse of discretion standard.

Well, pardon me, but it isn't.  I'm not going to go into detail here -- the stuff in the About section that this is a blog, not a law review article, applies here -- but if you do some checking you'll find that abuse of discretion is the standard for reviewing the admission of relevant evidence.  That is, the probative value versus prejudicial effect issue, questions about whether evidence is cumulative, whether a witness is qualified as an expert, etc., are all within the province of the trial court, and the appellate court shouldn't get involved unless the judge gets really funky in his rulings.  But if something's hearsay, the judge doesn't have the discretion to admit it anyway. 

Also somewhat unsettling in Davidson is the court's treatment of a detective's surprise testimony that the defendant "confessed" to the crime.  If you don't want to reverse the verdict because of this -- and frankly, I think you should -- at least chalk it up to harmless error.  In light of the substantial evidence of the defendant's guilt, that result would have been arguably justified.  Pretending that the curative instruction to the jury made them forget the testimony isn't.

Daniel Hines' luck finally runs out.  He was acquitted of the rape/murder of a 12-year-old girl in 2002.  (One of the jurors, beytraying a hopeless misunderstanding of the concept of double jeopardy, reportedly expressed the view that while she didn't feel the state proved its case beyond a reasonable doubt, she hoped the state would do better the next time they tried Hines.)  He followed that up with acquittals in child molestation cases in 2003 and 2004.  His luck runs out this week, as the court affirms his 12-year sentence for assorted sexual offenses against two more minors. 

Finally, if somebody's handing out a Good Neighbor Award, Pamela Ghaster's chances of winning it took a hit this week, as she was on the losing end of not one, but two, criminal cases.  In the first, her conviction of menacing by stalking a neighbor is upheld; in the second, the court affirms her conviction for intimidation and obstruction of justice for yelling at two police officers and blocking their car.  The Rocky River police may be accused of a number of things, but having an excess of machismo isn't one of them:  one of the prosecution witnesses in the latter case testified that the two officers "looked visibly shaken" after their interaction with Ghaster.

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