October 2009 Archives
As I mentioned earlier, I'm off next week. Pulled all the money out of my SEPP and IRA's, and am putting it on 27 Red. God, what a liar; I'm such a non-gambler that I had to Google "roulette table" to see whether the number 27 was red or black. Still, it gives me an opportunity to get out of this town before winter sets in. Usually, after about two months of that you want to slit your wrists just to see color.
Let's take a look and see what's happening in the Legal Biz.
A convicted sex offender is facing up to three years in prison for neglecting to disclose his past while joining the Facebook social networking site.
I'm sorry, I read the story three times and I still don't understand it. Is there something particular about New York's sex offender law which prohibits you from setting up a MySpace or Facebook account? Are you prohibited from Twittering? Would joining an online Fantasy Football league put you back in the slammer? Somebody help me out here.
Fishing expeditions. Ten years ago, a journalism professor at Northwestern University had his students begin looking at some convictions where he'd gotten letters from defendants claiming they were innocent. Some, it turned out, were right: the efforts of the class, which became the Medill Innocence Project, resulted in winning exonerations for eleven men, five of whom had been on death row.
Their latest effort has resulted in a hearing on a post-conviction relief petition for Anthony McKinney, who was convicted of murder 31 years ago. That apparently has ruffled some prosecutorial feathers. The Cook County state's attorney has subpoenaed the students' notes and recordings of witness interviews.
As well as their grades, the course syllabus, and evaluations of student performance.
Now, I don't know what Illinois' professional code of conduct is, but I'd bet it has something similar to Ohio's provision prohibiting abuse of legal procedures. Let's see a show of hands of all those who think the state's attorney general has anything to worry about on that score.
At what point do you think the lawyer realized his mistake? It's a standard practice for the defense lawyer to ask that the jury be polled when it comes back with a guilty verdict. Sure, it's a lot longer shot than 27 Red, but you never can tell whether some juror's going to have a change of heart between the time they sign the verdict form back in the deliberation room and the time they're sitting in the box, watching the defendant sobbing forlornly after the verdict is read. Or the defense lawyer sobbing forlornly...
But there's no reason in the world you'd do that if the jury comes back and says "not guilty." Hell, when I've gotten a not guilty verdict, both times I've been out of the courtroom before the jury was.
Not so in this case. The jury comes back with a not guilty verdict, the defense lawyer asks that they be polled, and the very first juror says that it's not her verdict. The judge sends them out to deliberate some more, and they come back with a conviction on a lesser count.
I guess that's why we carry malpractice insurance. Those of you who don't have enough money because you haven't doubled your retirement funds by betting on 27 Red, that is.
See you a week from Monday.
Ah, the marvels of technology. A police cruiser is fitted with a videocam, which faithfully records the officer's interactions with the citizenry. You happen to be representing one of those citizens whose interaction involved being stopped after allegedly imbibing a bit too much. You want to see the video to see how much of the cop's story it bears out. It turns out you can't, because when making a copy of the tape, the officer inadvertently pressed "Record" instead of "Play." At least, that's his story and he's sticking to it.
We are an incarceration society; 1 out of every 100 American adults is in jail or prison. The vast majority of those people are going to get out of jail or prison some day, and it would seem that any intelligent penal theory would attempt to smooth their re-entry back into society, to do what was necessary to protect society from them while at the same time ensuring that they could become productive members of society.
As the defendant in State v. J.G. found out, that's not the way it works.
The court closes the book on a 2002 police shooting, and we get an inkling of why the unemployment rate is so high. Those are the highlights in a week where the only criminal case of significance involves expungement.
It's fairly well acknowledged that the war on drugs has done a serious number on the 4th Amendment, but one of the weapons in that war, forfeiture, has pretty much eviscerated the 5th Amendment's prohibition on taking private property without due process. Last week, the Supreme Court heard oral argument in Alvarez v. Smith, an appeal of the 7th Circuit's decision striking down an Illinois law's provision that police can seize property that may have been involved in a drug-related crime and hold it for up to 187 days without a hearing. From the tenor of the questions, though, it appears possible that the Court could dismiss the case as moot, since the property's been returned. Given the concern expressed by some of the judges that affirmation of the decision could "unduly hamper" the police, that may not be a bad thing.
The other notable argument was in Padilla v. Kentucky, involving an ineffective assistance of counsel claim due to a lawyer's incorrect advice that his client's guilty plea would have no effect on his immigration status. A couple years back, the Court granted cert in a case where the 9th Circuit had given habeas relief to a defendant who argued that his lawyer screwed up by not advising him to take a plea, but that case was resolved before the Court could decide it. An extension of the Strickland standard into cases of misadvice, rather than derelict trial performance, would be a big step, and it's not clear that the Court's willing to take it.
Nothing happening in Columbus, other than a disciplinary decision which (a) warns about the consequences of representing multiple parties, and (b) gives further evidence of the court's inclination to punish mere negligence as misconduct. The attorney in Columbus Bar v. Mangan had agreed to represent a father and his son and daughter-in-law in a foreclosure action, but never consulted the latter two, believing the father's claims that he was acting on their behalf. Turns out he wasn't, and the couple filed a bar complaint after they found the house had been sold at sheriff's auction. They didn't lose any money as a result, and everybody agrees that this didn't result from "anything other than carelessness," but he gets a public reprimand nonetheless.
In the courts of appeals, not much happening either...
Willingham update. A couple months back, I mentioned the case of Cameron Todd Willingham, who was executed by Texas in 2004 for setting a fire in his house which killed his three children. Turns out that since then, nine of the top fire investigators in the country have examined the evidence and concluded that the fire wasn't arson at all, and that the "expert" testimony which sent Willingham to his death was little more than folklore and old wives tales, "wholly without any realistic understanding of fires and how fire injuries are created."
And then things got interesting. Just before the Texas Forensic Science Commission was to proceed with its analysis of the case two weeks ago, Gov. Rick Perry -- who signed off on Willingham's execution and who is running for Senator -- replaced the chairman, a defense attorney, with a hard-line prosecutor, delaying the hearing. Not that it would matter; Perry has already publicly called Willingham a "monster," saying that the evidence against him was "overwhelming."
Well, things just got even more interesting. With a hat tip to Sentencing Law & Policy comes a pointer to this story, which tells us that Gov. Perry's general counsel, David Medina, and his wife were indicted for tampering with evidence after their house burned down in 2007, with local fire marshals ruling that it had been arson. The charges were dismissed after the Medinas presented evidence from top experts showing that the fire marshals had gotten it wrong, and that house burned down as a result of an electrical fire.
Medina was counsel to Perry in 2004, when Perry's office received a fax outlining the problems with the evidence in the Willingham case just 88 minutes before he was executed. It's not known whether Medina, or even Perry, ever saw the fax: Perry has refused to release any documents relating to the execution.
Brutal decision on child porn search. Douglas Frechette was a registered sex offender. In January of 2007, he subscribed to a child pornography web site. He didn't renew his subscription after it expired a month later. Sixteen months after that, the Feds got a warrant to search his home computer. The two sentences before that last one served as the factual basis for the warrant: there was no allegation that Frechette had actually downloaded child porn onto his computer. Last week in US v. Frechette, the 6th Circuit reversed the district court's grant of a motion to suppress. The Circuit's decision was based, essentially, on the inference that if Frechette was going to pay to join the site, then he was going to download from it, and if he was going to download from it, he'd keep the pictures so they'd still be on is computer sixteen months later.
The dissent reasonably suggested that if the offense had been, say, pirating music, no one in his right mind would have sought a search warrant on those facts, let alone granted one. And she's right. If the police had come and dragged some soccer mom out of her house in handcuffs because a year and a half earlier she'd made a one-month subscription to a file-sharing service, there'd be rioting in the streets. We've largely eviscerated the 4th Amendment in our "war on drugs," and child porn's apparently another crime where we're willing to cut corners.
Earlier this week, I mentioned State v. Johnson, in which the 8th District had upheld the grant of a motion to suppress where the police ordered the defendant out of a car for the sole apparent reason that there were other people in the vicinity who might have been selling drugs. I ran into the lawyer who handled the appeal, and he told me the trial court had written an opinion in the case. The opinion read, in total: "This is still America. Motion granted."
Everybody agreed that Frank Spisak was a despicable human being. After oral arguments the other day in Smith v. Spisak, the Supreme Court will have to determine whether his lawyer went too far in telling the jury in Spisak's capital trial just how despicable Spisak was.
A number of people have suggested ways in which I could make money off this blog. I may have stumbled across one, albeit inadvertently: pimping for the county prosecutor's office.
The State fares poorly in the more than two dozen decisions released by the 8th last week. Personal injury plaintiffs fare better. And if you're a local judge and want to find out exactly how to get rid of those low-level drug cases that clog your dockets, keep reading.
The US Supreme Court's term opened last week with oral argument in several high-profile cases; perhaps the biggest was US v. Stevens, which tests the constitutionality of a law passed by Congress to ban videos depicting the killing or serious abusing of live animals. Stevens had gotten three-plus years for making a video of pit balls mauling each other -- 14 months longer than Michael Vick got for actually having pit bulls maul each other. Despite the fact that the statute contains an exemption for depictions which have "religious, political, scientific, educational, journalistic, historical, or artistic value," it's fairly clear that the statute's in trouble; the only real mauling in oral argument was of the deputy solicitor general in his defense of it. The most interesting aspect of the argument was Justice Alito's intriguing hypothetical as to whether Congress could ban a pay-per-view channel showing human sacrifices. I guess he's never seen an Ultimate Fighting Championship contest.
The other argument of note was Maryland v. Schatzer. Schatzer invoked his Miranda rights when first interviewed by the police in 2003, but made a statement when the police returned to prison to interrogate him again in 2006. Under Edwards v. Arizona, police can't resume interrogation after a defendant clams up unless the defendant initiates the communications. The question in Schatzer is whether time alone eliminates Edwards' protection. The government focused on the claim that some "break in custody" rule was necessary to prevent a defendant from being perpetually immune from further questioning, but, despite Scalia's urging that the police be given a clear standard, nobody seemed to have any real idea of what that meant in concete terms.
Nothing going on in Columbus, so let's head to the courts of appeals...
More guns? Less Apprendi? As I noted a couple weeks back in my preview of the upcoming US Supreme Court term, the preview wasn't complete because the Court always adds cases to its docket during the term, and among the ten cert grants it issued last week were some that could result in major changes in the legal landscape.
While our stalwart governor has plundered educational and social programs in order to stave off a budgetary crisis, he's managed to keep correctional spending at a level sufficient to permit us to send Eric Robinson to prison for three years for possessing nine baggies containing six grams of marijuana. Robinson's was one of the five drug cases, out of ten criminal cases decided by the 8th this past week. The total amount of drugs involved in all five probably wouldn't have been enough to get the Brady Bunch high.
Abbreviated schedule here this week; I'll have the Case Update today, the 8th District decisions tomorrow, and some stuff on the US Supreme Court's new term, including the latest cert grants, on Wednesday. That'll wrap it up for the week.
On Friday I mentioned the one decision out of Columbus, Oliver v. Cleveland Indians, which upheld the $250,000 cap on compensatory damages against a political subdivision. In State v. Hoover, the court votes 4-3 to uphold the constitutionality of RC 4511.19(A)(2), which imposes an additional ten-day mandatory jail sentence upon someone who refuses to consent to a breath test for drunk driving, and who has had a prior DUI conviction within the past 20 years. The basis for the majority's opinion is that refusing to consent isn't a crime -- and court has repeatedly said making it one is impermissible -- it's just an element of the crime. Justice Pfeifer, in an unlikely alignment with Chief Justice Moyer and Justice O'Donnell, makes a fairly compelling case in dissent that this purported distinction is meaningless.
State ex rel. Cordray v. Marshall involves an interesting and unusual situation. The defendant, Rawlins, was convicted of murder in 1997. He appealed, arguing that the court should have instructed the jury on voluntary manslaughter, a contention that was rejected. In 2005, Rawlins filed a "motion to vacate" his conviction with the trial court, making the same argument. A new judge had taken over from the one who'd heard the case, and granted the motion, sentencing him to ten years, then granting judicial release; this was done with the local prosecutor specifically stipulating that he had no objection to it. No matter; the attorney general filed a writ of prohibition, and the Supreme Court agrees not only that the judge lacked the power to do what he did, but that the attorney general, as the top law enforcement officer in the state, had standing to complain about it.
And in the courts of appeals...
I've got a couple of briefs due on Monday that have announced they're not going to write themselves, but instead of taking the day off from here, I'm going to repost something I did back in January, entitled "Take me out to the ballgame." I'll explain why at the end of the post.
On June 11, 2002, Don Krieger, Clifton Oliver, and Andrew Mendez went to an Indians game in Cleveland. The Tribe beat the Philadelphia Phillies handily 5-1, with Bartolo Colon pitching eight strong innings, and Milton Bradley providing the the big blow with a 3-run homer in the 3rd.
That's not why Krieger and Oliver will always remember that game, though.
Their seats were in the in the nosebleed section in rightfield, but they quickly moved to some open seats in the lower deck, leaving Mendez in the upper. Just before starting back up to rejoin Mendez at the end of the game, they heard a firecracker go off. By the time they got back to the upper deck, Mendez had become the focus of suspicion; several people claimed to have seen him throw something from the upper deck. Police questioned the trio three times; each time, Krieger and Oliver fully cooperated, answered questions, and consented to searches.
What happened after that borders on the Kafkaesque. The police arrested Krieger and Oliver, took them downtown, and held them in separate jail cells for four days without charges. There were no mattresses, pillows, blankets, or even chairs in the cells. Oliver was a Marine on convalescence leave due to cervical fractures, and because of the cervical collar he was wearing, had to sleep sitting in a corner of the cell. Krieger lost 12 pounds in the four days.
They were charged with arson. At the bond hearing, the investigating detective, Ralph Peachman of the Cleveland Police Department, asked for a bond of $1 million, testifying that Krieger and Oliver were terrorists and that Oliver had gotten an explosive device from the Marine Corps.
That wasn't true, and Peachman knew it. In fact, before the hearing, he'd told the men's lawyers that he knew they didn't have anything to do with it, and offered to drop the charges if they'd give a statement against Mendez. They refused, saying they couldn't implicate Mendez because they weren't with him when the incident happened. Peachman went ahead with the hearing, then testified to the grand jury, getting an indictment against the two on four counts of aggravated arson and felonious assault.
The case came apart when video surveillance tapes showed Kreiger and Oliver were indeed in the lower deck when the firecracker was dropped. Peachman still refused to recommend dismissal unless they gave a statement against Mendez. A week before trial, the prosecutor caved and dismissed the case against the two; Mendez was subsequently convicted.
The story doesn't end there. Krieger and Oliver sued the City of Cleveland for malicious prosecution, and last year the 8th District upheld an award of $400,000 in compensatory damages for each of them, plus an additional $144,000 in prejudgment interest; although the two were willing to accept $20,000 each as a settlement before trial, the city had never offered them a dime. The case is now before the Ohio Supreme Court, on the issue of whether the $250,000 cap for non-economic damages in the newly-amended sovereign immunity statute is constitutional.
The story doesn't end there, either. Despite the dismissal of the charges, Oliver's military career was ruined; when he called his commanding officer after he was let out of jail, he was told that he was "an embarrassment to the Marine Corps and a black eye to the battalion." Due to the extensive media coverage, which prominently featured Peachman's description of him as a "terrorist," Oliver couldn't find employment.
He sought treatment at the VA hospital, and in various therapy sessions confessed a desire to beat up the prosecutor, judge, and detective who'd been involved in his criminal case, and to purchase a gun and kill himself. The hospital staff, in compliance with the law, notified the three that Oliver had threatened them. Oliver was indicted for three counts of retaliation, and a jury trial resulted in his conviction.
Last week, in State v. Oliver, the 8th District reversed on insufficiency of the evidence. The court primarily relied on a 2nd District decision, State v. Farthing, which held that the retaliation statute requires that the defendant communicate the threat either to the intended victim or to someone he could reasonably have anticipated would tell the victim. Farthing had written a letter to another inmate describing his desire to rape his parole officer, and the court understandably held that he wouldn't have anticipated this being shared with the PO. The Oliver court notes repeatedly that Oliver's doctors urged him to be truthful about his thoughts and feelings, and that "there is no indication that defendant expected or intended his feelings or thoughts be communicated to non-medical personnel, especially the individuals who he was reporting having thoughts of harming."
The court goes beyond that, though, and draws a distinction between what Oliver said he wanted to do and what he intended to do, essentially holding that the former doesn't prove the latter. There's an awful lot of law that says that a person's words are perfectly good evidence of what they intend.
That's not to say that Oliver falls into the "hard cases make bad law" category. It's too fact-specific, and the crime is too uncommon, for it to do any real damage. Still, you come away from the decision with the undeniable feeling that the appellate court just figured that Oliver had been chewed up by the criminal justice system quite enough for one lifetime. And regardless of how Oliver fares with the damage question down in Columbus, they're right.
Yesterday, in Oliver v. Cleveland Indians, the Ohio Supreme Court, by a 5-2 vote, upheld the statutory limit of $250,000 in compensatory damages. In a footnote, they found that "the conduct of certain employees of the Cleveland Police Department and in particular Defendant Peachman was reprehensible."
Peachman is now employed as a police officer by the City of Bay Village, a suburb of Cleveland.
One of the problems with 4th Amendment law is that it's heavily fact-specific, making it difficult for appellate courts to provide lawyers and judges (to say nothing of the police) with clear guidance as to what's permissible and what's not. The 8th District provided some, if unintentionally, in a couple of cases last week, and in the process provided further evidence for my belief that they're the most pro-4th Amendment court in the state.
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