September 2009 Archives
The only major opinion out of the Supreme Court last week was the unanimous reversal of the 8th District's decision in State v. Cargile. Cargile had been arrested, and before taking him to jail, the officer asked if he had any contraband. He denied it, and during the booking process, well, what do you know: he had some marijuana in his pants cuffs.
One of the things you learn by doing criminal appeals is that people in prison have an awful lot of time on their hands, and often decide to spend it by writing copious letters to their attorneys explaining their views of the appropriate appellate strategy. Or, if they don't have attorneys, by repeatedly filing pleadings attacking the reason they have an awful lot of time on their hands. Pro se pleadings featured prominently in the 8th's work this past week.
Okay, I lied again. I said on Friday we'd have an abbreviated week here, with posts just on Monday and Tuesday. Turns out that the only Ohio Supreme Court decision from last week, State v. Cargile, deserves some more extensive treatment than I'd give it here, and there are a couple of 4th Amendment decisions out of the 8th District that are worth talking about. So we'll do that on Wednesday and Thursday, respectively. Besides, the major reason for the abbreviated schedule was that I was going to spend the weekend converting my lawn into something customarily found in residential areas, as opposed to African wildlands. Unfortunately, this weekend apparently coincided with the advent of Cleveland's Gray Days, an annual event stretching roughly from October to May.
Let's head straight for the stuff from the courts of appeals, where it's a fairly meager slate...
The "next" US Supreme Court term has already started; although the Court traditionally begins its term on the first Monday in October, this month had oral arguments in Citizens United v. Federal Elections Commission. So I figured it might be time to take a look at some of this issues the Court will be looking at this year.
That was reputedly Yogi Berra's comment on seeing Roger Maris and Mickey Mantle hit back-to-back homers, and it fits the Ohio Supreme Court's latest foray into allied offenses. The court took another shot at it again last week, and there's serious concern we could be deja vu-ing our way all the way back to State v. Rance.
To paraphrase the song title, it ain't easy being a judge, but there are things which make it easier. The statutes exactly prescribe what a judge must tell a defendant who is not a US citizen before accepting a plea, and the Supreme Court has spelled out what a judge must tell a defendant about post-release controls at sentencing. Nonetheless, some judges prefer to wing it, and this week's cases reveal the often predictable results of that choice.
The saga of State v. Crager comes to a conclusion. Sort of. For those late to the party, the Supreme Court held in Crager that testimony by a DNA analyst who wasn't the one who actually performed the test didn't violate the defendant's confrontation rights, because scientific tests weren't testimonial under Crawford v. Washington. This past summer, in Melendez-Diaz v. Massachusetts, the US Supreme Court held that they were. SCOTUS also remanded Crager back to the Supreme Court for reconsideration in light of Melendez-Diaz.
My post a month ago (which has links to previous posts discussing the two decisions) suggested how the Ohio Supreme Court might handle this. "Punting it back to the trial court" wasn't one of the options I foresaw, but last week, that's exactly what the court did, deciding to let the trial court "address the admissibility of the DNA evidence admitted at the trial in light of the holding in Melendez-Diaz v. Massachusetts."
What's to address? The facts aren't in dispute; it's purely a question of law, and one which should be addressed by the highest court of the state. The court did the same thing in 2007, in State v. Oliver (discussed here), where the court considered SCOTUS' decision in Michigan v. Hudson, which had held that the exclusionary rule didn't apply to violations of the "knock and announce" rule. Despite determining that because "the people of Ohio have a paramount interest in knowing how their courts will interpret and apply Hudson, we have a duty to see that Hudson is addressed as expeditiously as possible," the court remanded the case back to the trial court to "reconsider its ruling in light of Hudson." So what happened? The defendant pled out, got six months in jail, and almost three years later there's still no definitive ruling on Hudson's application.
The appellate courts did actually address some issues, so let's take a look at those...
Demon Weed Update. While arguments can be made that marijuana presents no more danger to the public weal than alcohol, and is far less harmful than legal substances like tobacco, there is no question that it ranks far below other drugs, like crack, cocaine, heroin, PCP, etc. on the risk scale. One would anticipate that, in a rational world, the $40 billion or so we spend on the War on Drugs would be devoted to the investigation and prosecution of those selling and using those more harmful drugs.
It's been five years now since the US Supreme Court's decision in Crawford v. Washington revolutionized the Confrontation Clause. A couple decisions from the appellate districts, and an oral argument in the Ohio Supreme Court, indicate that there's still work to be done in sorting it all out.
Romell Broom was supposed to get the needle yesterday (see story below) for kidnapping, raping, and killing a 14-year-old girl in 1984. His judicial oddyssey to avoid execution over the past 25 years provides an interesting study of the quirks of death penalty law, habeas corpus, and, of all things, Ohio's public records statute, RC 149.43.
They tried to kill Romell Broom yesterday. Didn't go so well, as this story from the AP relates:
The team began working on Broom, in a holding cell 17 steps from the execution chamber, at about 2 p.m., four hours after his execution was originally scheduled. That initial delay was due to a final federal appeals request.
After the team spent nearly an hour trying to find a workable vein, Broom tried to help them bring him a quicker death. He turned over on his left side, slid rubber tubing designed to clarify his veins up his left arm, then began moving the arm up and down while flexing and closing and opening his fingers. The execution team was able to access a vein, but it collapsed when technicians tried to insert saline fluid.
Broom then became visibly distressed, turning over on his back and covering his face with both hands. His torso heaved up and down and his feet shook, as he appeared to be crying. He wiped his eyes and was handed a roll of toilet paper, which he used to wipe his brow.
He sat up at the end of the bed and talked with his execution team.
The team had been asking Broom whether he wanted a break, but he chose to push ahead, as did the execution staff, prisons director Terry Collins said. Collins then insisted on a break and contacted the governor to let him know about the difficulties.
The governor granted a weeklong reprieve. Unless the courts intervene, they'll have another go at Broom next week.
Some good search and seizure decisions, the State gets smacked down in a sentencing case, and best of all, no head-scratchers this week.
People complain about how long it takes to carry out a death sentence, but there are times when the system can move with alacrity. Romell Brown was sentenced to death back in 1985 for the kidnapping and murder of 14-year-old Tryna Middleton. His quarter-century attempt to avoid execution seemed to pay off on July 30 of this year, when the 8th District reversed a decision denying him post-conviction relief, holding that the trial court should have reviewed police records he'd obtained after his conviction.
The State filed a notice of appeal with the Supreme Court on August 31. On September 2, the court accepted the appeal, ordered the State to file a merit brief on the 4th, the defense to file theirs on the 8th. The State had until the 9th to file a reply brief.
On the 11th, this past Friday, in State v. Broom, the court reversed the 8th. Broom's execution will go forward tomorrow.
Broom was the only decision out of Columbus. In Washington, SCOTUS had a special session to hear oral arguments on whether the funding of a movie which said bad things about Hillary Clinton violated the campaign finance reform laws, and from the looks of it, those laws are going to take a major hit.
In the courts of appeals, lots of civil stuff. Apparently, some judge on the 2nd District must have gotten a speeding ticket he didn't think he deserved, because there were four, count'em, four reversals of criminal cases by the 2nd...
SORNA update. With the constitutionality of Ohio's Adam Walsh Act to be decided by the Supreme Court early next year, the efficacy of sex offender registration laws took a recent hit with the revelation that Phillip Garrido managed to keep Jaycee Dugard, a child he'd kidnapped when she 11, hidden in his back yard for 18 years, despite monthly visits from California law enforcement officers supposedly monitoring his sex offender status. As this Wall Street Journal article notes, the case
There are now so many people on the [offender] registry it's difficult for law enforcement to effectively track them all, and "it's more helpful for law enforcement to know...who the highest-risk offenders are," said Janet Neeley, a deputy California attorney general and member of the state's sex offender board.
A December study of roughly 20,000 registered sex offenders on parole in California found 9% posed a "high risk" of reoffending, and 29% posed a "moderate-high" to "high" risk, said Ms. Neeley. But law-enforcement officials and academics say vast resources are spent monitoring nonviolent offenders rather than keeping closer tabs on more-dangerous ones.
And those in search of more concrete data can look to this research paper (hat tip to Sentencing Law & Policy), which examined various sets of numbers and concluded that "results. . . do not support the hypothesis that sex offender registries are effective tools for increasing public safety."
Surfing the blogs. I like to think of this blog as a resource for attorneys (and even the occasional judge) trying to keep up with developments in Ohio law. Whatever might be said of that, it's a good secondary source: the blogroll on the panel at right contains a number of excellent legal blogs, especially criminal law. This past week, for example, Jeff Gamso has a great post about drug-sniffing dogs and other problems with forensic evidence. At Grits for Breakfast, Scott Henson gives you links to just about everything you'd want to know about the hullabaloo following the disclosure that Texas almost undoubtedly executed an innocent man, discussed here a couple weeks back. And Mark Bennett of Defending People has a nice tip on jury selection, premised on the childhood dare "I'll show you mine if you show me yours.
But there's one blogger you won't find there: Andy Nolen. He's a Houston lawyer, as you can read here and here, in an attempt to bolster his practice, he posted negative comments about other Houston lawyers on the Yahoo Local website. Well, he didn't; someone using the nom de plume "jerry k." posted them. Thirty-two of them. In one day. Actually, only 31 of the comments were negative. One was glowingly positive. It was for Andy Nolen.
That's about as l0w as you can go.
Honor among thieves drug dealers. A Canadian judge recently had to sort out a dispute over a $5 million winning lottery ticket on these facts:
In 2006, after a busy day “conducting illegal drugs transactions”, Daniel “Ears” Carley was driven to a shop from which he purchased 12 lottery tickets. When he got back in the car, Paul Miller, the driver and a childhood friend, scratched one of the tickets to discover it was a winner. After Ears banked the $5 million, Miller sued, arguing that he had given $10 to Ears just before the key purchase and said, “Here, buy me one too.”
As this story about the case relates, the judge ultimately decided in favor of Ears -- er, Carley, despite finding that he had "many credibility issues." He gets to keep what's left of the money; he's been spending it at the rate of $20,000 a week for the past three years.
The question was straightforward: "Do you think that Crawford renders the rape shield statute unconstitutional?" I hadn't given it much thought, so I gave the first answer that came to mind: "No."
It would have been better if I'd given the second answer that came to mind. It would have been much better if this had occurred in an idle conversation over lunch or at the office, instead of in the midst of an oral argument before the Court of Appeals.
With Labor Day approaching, the 8th's judges have just enough time to toss a palrty nine decisions into the hopper before heading out of town. Good work all around, though, and of particular interest are some dissenting and concurring opinions.
In France, they close the country down in August so everybody can go on vacation. We may be heading toward that, at least around Labor Day; no decisions out of the Supreme Court this week, and a light load in the appellate districts. Of course, the Supreme Court wasn't writing because it was listening: several key oral arguments, which I'll discuss later this week or next. Meantime, in the courts of appeals...
Kids have Fred Flintstone vitamin tablets and we have... As if the waning support for health care reform wasn't enough of a problem, now President Barack Obama has to cope with the latest report from EcastasyData.org, which tells us that "the most notable new style of ecstasy tablet is the Obama head, which seems to be part of the same group of unusually shaped tablets that contain BZP, TFMPP, caffeine and other random bunk ecstasy substances (DXM, very low doses of methamphetamine, and methylsulfonylmethane). " Our president's visage is simply the latest addition to a long line of Ecstasy mimic designs, which include Homer and Bart Simpson, the Smurfs, Snoopy, and the Ninja turtles.
I ran into Ed Vargas, a local Cleveland attorney, a couple weeks after he'd won a big case involving the castle doctrine. I'd talked about the doctrine here; basically, through an amendment to RC 2901.05(B), it creates a presumption that if you use deadly force inside your own home against an intruder, it's self-defense. I told Ed I'd take him out to lunch to pump him for his insights on the subject, but then I ran into him the other morning at a pretrial and got the info for free. So I guess that's one hot-dog vendor that's out $3.50, or maybe more if I was in a mood to pony up an extra buck for chips.
Case 1. You know you're in pretty good shape when, three days before trial, the prosecutor asks you if your client knows where the victim can be reached.
This week's "We Know What You Meant, But You Could Have Said It Better" Award goes to the trial judge in State v. Hawkins. Hawkins was facing life without parole for several aggravated murders, and in explaining why a plea deal might be beneficial, the judge told him, "If you're convicted of all these crimes, Mr. Hawkins, you are going to die in prison, and so is everybody else in your family."
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