Reach out and touch someone. I ran into one of my buddies in the prosecutor's office the other day. He'd been the subject of a laudatory editorial in the Plain Dealer the other day. He was handling a rape case -- a particularly nasty one; the victim was retarded -- in which the defendant had filed a motion to dismiss, attached to which was an affidavit from the victim recanting her allegations. On a hunch, he had the sheriff's office pull the recordings of the defendant's telephone calls from the jail, and sure enough, there were calls from the guy instructing several family members to kidnap the victim and force her into signing the recantation.
It was a good hunch, but not a long shot. It constantly amazes me what inmates of a county jail will say on a phone while looking at a sign next to it telling them that all calls are monitored and recorded. Last year, I had a case in which my client's claim that he never had a weapon during the robbery would have been more successful had there not been about numerous recorded conversations with his girlfriend telling her where to hid the gun. I make it a point now to tell all my clients not to say anything over the phone.
So I was somewhat bemused by this disciplinary case from the Ohio Supreme Court this week, giving a public reprimand to an attorney for having a sexual relationship with a criminal defendant who was her client. The client went public with the allegation after he was convicted and sentenced to two years, and the attorney initially confessed to having developed a "friendship" with the defendant, but acknowledged that it was more than that when confronted with over fifty hours of tape-recorded jailhouse telephone conversations, in at least three of which "respondent requested and/or engaged in telephonic sexual activity with her client."
Maybe she should've spent more time encouraging the family to raise money for the guy's bond...
More on en banc. Fresh on the heels of my post last week about en banc proceedings is news that the 8th District has voted to use the procedure to resolve the question of the constitutionality of the Adam Walsh Act, which mandates stiffer registration and notification requirements for sex offenders. I was just about to break my arm patting myself on the back for my imagined influence over on Lakeside, until I realized that the order for the en banc proceeding was issued almost a month ago. So unless precognition is numbered among the many, many fine attributes of the judges of the local court of appeals, several of whom I'll be appearing before in the next few weeks, I can't take the credit for this one.
Several surprises, though. One of them is that while one of the staff attorneys there told me that a local rule adopting the en banc procedure had been approved, the order makes no mention of it, instead relying upon the court's Standing Resolution, which was adopted back during the Carter administration. Second, while there have been a number of different panel decisions from the 8th on the constitutionality of the AWA, none of them are in conflict; in fact, only one judge has dissented from the view that the Act is constitutional. Finally, the issue is before the Ohio Supreme Court; all the briefs will have been filed by next week, and the case will be argued and decided either by the end of this year or the early part of next.
Never mind. For years, one of the arguments by death penalty opponents is that an innocent man could wind up being executed. The counterargument by supporters has been that that's never happened. Jeff Gamso gives a nice run-down on his blog why that might change. Back in 2004, Texas executed Cameron Todd Willingham for setting a fire which killed his three children. Now comes news that a review of the case has concluded that the fire wasn't arson to begin with. Also interesting for those following the Crager issue as to the reliability of forensic evidence was this:
The state fire marshal on the case, Beyler concluded in his report, had "limited understanding" of fire science. The fire marshal "seems to be wholly without any realistic understanding of fires and how fire injuries are created," he wrote.
The marshal's findings, he added, "are nothing more than a collection of personal beliefs that have nothing to do with science-based fire investigation."
Over the past five years, the Willingham case has been reviewed by nine of the nation's top fire scientists -- first for the Tribune, then for the Innocence Project, and now for the commission. All concluded that the original investigators relied on outdated theories and folklore to justify the determination of arson.
Medical Malpractice = Crime? Speaking of Ohio law blogs, Brian Wilson over at the Bulls-Eye Blog did a piece on the recent sentencing of a Cleveland pharmacist for botching a chemotherapy prescription that resulted in the death of a little girl, and sent me an email asking for my opinion. It was pretty much the same as his; while there's no question that the pharmacist should lose his license and be sued to the hilt, making this into a criminal case seemed to be overkill. Also, being much more jaundiced than Brian, I'd ventured the opinion that if the defendant had been a doctor instead of a pharmacist, and the victim a 45-year-old black woman instead of a cute little girl, the chances of a criminal prosecution would have been nil.
What do you call 20,000 dead lawyers? A good start. Gallup just came out with its most recent poll on how the public views various industries, under the headline, "Automobile, Banking Industry Images Slide Further," with only 28% and 24%, respectively, of the public viewing them positively. The "legal field" is holding steady at 25%.