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. (keep reading…)

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. (keep reading…)

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… (keep reading…)

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. (keep reading…)