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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.

Last week I discussed allegations of ineffective assistance of counsel, which seem to crop up with increasing regularity.  The claim du jour apparently is a lawyer's failure to file a motion to suppress an identification; the issue was raised in both State v. Jackson and State v. DoubravaNot surprisingly, they went nowhere.  Given the rarity with which such motions are granted, counsel's failure to file one can probably be chalked up not to trial strategy, but to "why bother?"

An ineffective assistance claim also showed up, but wasn't ruled upon, in State v. Taylor, which presented an interesting fact situation.  Say you're representing a guy in a drug trafficking case with a school specification, and the only real question is the spec:  did he commit the offense within 1,000 feet of  a school?   You and the prosecutor stipulate that the defendant will plead no contest, with the court then conducting  an evidentiary hearing on the spec.  It does so, and after the state presents its two witnesses, you call your expert, who's going to testify to the measurements he made.  Not so fast, says the judge:  by pleading no contest, the defendant has admitted to the facts as the state has presented them.  The appellate court says the judge was right.  It reverses anyway, saying that the trial lawyer's misunderstanding of the effects of the no contest plea rendered the plea invalid.

Other things judges should know.  When you bring a defendant back for resentencing because post-release controls weren't properly imposed the first time around, and he files a motion to withdraw his plea, do you use the "pre-sentence" or "post-sentence" standard in deciding the motion?  Big difference:  the former is to be "liberally granted," while the latter is to be granted only to "correct a manifest injustice."  Well, since the Ohio Supreme Court has held that the sentence is void if PRC isn't properly imposed, you use the pre-sentence standard, says the court in State v. McQueen

Speaking of the Supreme Court, word has it that there's at least two of them, one in Columbus and the other in Washington, DC, but you wouldn't know it from reading a couple of the 8th's opinions last week.  In State v. Calhoun , Calhoun was charged with shooting and killing Johnson; the prosecutor's theory was that Calhoun did this to keep Johnson from testifying against Calhoun at the latter's trial for felonious assault, where he was charged with... ahem... shooting Johnson.  Before he died after the second incident Johnson again fingered Calhoun as his assailant, and that identification creates the issue in the case:  is it admissible under the "forfeiture by wrongdoing" exception to the Confrontation Clause?  (Essentially, if you do something to prevent a witness from appearing at trial, you can't complain that you didn't get to cross-examine them.)  The Calhoun opinion discusses the exception in detail, citing other Ohio cases, but leaving completely unmentioned Giles v. California, the US Supreme Court's decision on how forfeiture by wrongdoing applies to Crawford v. Washington.  It's a rather curious omission, given that Giles came down less than a year ago.  Then again, I read Giles three times and couldn't make sense of it, so maybe that's what happened here.

Less understandable is State v. JacksonJackson had confronted a woman and her nephew as the latter two were getting into the woman's car, produced a gun, and told them not to move; the issue in the case was whether the charges of aggravated robbery and kidnapping merged.  The Ohio Supreme Court's decision in State v. Winn not two months ago addressed that very question, and decided that the two offenses did merge (Winn discussed here).  Fortunately, the Jackson arrives at the same conclusion, without the benefit of Winn's guidance.

The discerning reader will note that Jackson is mentioned earlier in this post, in the discussion of ineffective assistance claims.  The other case mentioned there, State v. Doubrava, is also worthy of a two-fer.  I've always been fascinated by the number of horribly damning statements which appellate courts are willing to overlook by sweeping them under the rug of harmless error.  Doubrava contains an addition to that collection.  Doubrava was charged with driving into a crowd, injuring four people, and presented witnesses who denied he was the driver.  A state witness was asked if she could think of any reason why other people would try to cover for him, and replied, "I heard he is on probation or parole and would probably be going back to prison if he was involved."  Not sufficiently prejudicial, said the court.

What would've been sufficiently prejudicial?  Vote for your favorite:

  1. "I heard he is on probation or parole for beating his elderly mother with a tire iron."
  2. "I heard he is on probation or parole for stealing money from the Make a Wish foundation, so kids with cancer can't go to Disney World."
  3. "I heard he is on probation or parole for strangling kittens."
  4. All of the above.
  5. None of the above.

You know what my vote is.


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