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What's up in the 8th

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.

I've mentioned in the past that the prosecutors are getting a hard time from the 8th, especially in search cases, but they're not doing too well in the trial courts, either.  Typical is State v. Johnson.  Johnson had picked a bad time to pull into a driveway to turn around; no sooner had he done so than several police cars pulled up, one blocking his egress.  Their target was apparently the 10 to 15 people loitering in the area, since the cops had made controlled drug buys there earlier that day.  When Johnson asked the police to move their car so he could leave, they instead asked him to exit the vehicle for "officer safety."  When he did, they smelled "a loud odor of marijuana," and, long story short, found about a kilo of the demon weed in the trunk.  The trial judge threw it all out, and the court affirms.  The State argued that it was merely a consensual encounter rather than a stop, but I don't know too many people who "consent" to being ordered out of their car, and apparently the appellate panel knows the same people I do.

Another loser for the prosecution at the trial level comes in State v. ChappellChappell had been charged with selling bootleg DVD's, but the case fell apart to the extent that the only charge remaining was possession of criminal tools.  In response to a defense motion, the State filed a bill of particulars stating that the tools were possessed "for the purpose of violating Federal copyright laws."  The trial court dismissed the indictment, finding that intent to use item criminally must arise from intended violation of Ohio law, and “the State is not free to use the law of any jurisdiction or federal law in order to support its claim.”  The appellate court agrees, and further says that the the court could dismiss the indictment prior to trial under Rule 12(C), since Chappell's motion “did not require a determination of a general issue at trial,” but simply alleged that the indictment failed to make out any offense under Ohio law.

The State manages wins in the trial court in a couple of other cases, only to see victory turn to ashes in the court of appeals.  In State v. Cunningham, the court reverses convictions of rape of a 10-year-old because of the State's presentation of evidence concerning Cunningham's drug addiction, finding no purpose for it under 404(B) since it had absolutely nothing to do with the crime.  In State v. Garrett, the defendant had been charged with multiple counts, the most serious of which were aggravated burglary, aggravated robbery, felonious assault, and attempted murder.  He was convicted only of possession of criminal tools and attempted tampering with records, but even those were reduced to misdemeanors on appeal because the jury verdicts didn't include the specifications that would make them felonies.

The prosecution fares better in State v. Ross, though Ross bears most of the responsibility for that.  Ross was charged with rape, and decided to waive a jury and try the case to a judge who had once been profiled in Cleveland Magazine as "a criminal's worst nightmare," an observation unanimously shared by the defense bar and by the judge herself.  Ross eschewed his lawyer's advice on the subject, and instead "relied on discussions with others," stating his belief that "the judge knew the law better than '12 other people from the street.'"  Well, Sparky, that's often one of the exact reasons why you want a jury.  Ross claims on appeal that his waiver wasn't voluntary and intelligent, and although he's half right, the court rejects his claim, noting that the trial court "warned him of her reputation as a tough judge, and all but told him not to waive the jury." 

In State v. DiSanza, the court reverses a sentence because the judge didn't get a pre-sentence report before putting the defendant on community control sanctions.  Last week, in State v. Eppinger, the court reversed a sentence because the judge had given the defendant 25 days in jail -- which he'd already served -- but no period of supervision.  So, let's say you're a judge, and you've got some crappy crackpipe case you want to get rid of.  Here's how you do it.  Request an accelerated PSI -- it'll take two weeks, instead of three or four -- sentence the defendant to time served plus one year of community control sanctions, and terminate the sanctions.  It may ultimately not work -- in both DiSanza and Eppinger, the State argued that the trial court erred by not imposing supervision for "a signficant period of time," but the court didn't reach that issue -- but it's your best shot.

Finally, in the civil arena, Clayton v. Pederson presents an all too usual situation:  a personal injury plaintiff getting a paltry jury award.  In this case, Pederson's vehicle had rear-ended Clayton's, knocking it sixty feet into the roadway.  Clayton accumulated over $25,000 in medical bills, and claimed the accident had aggravated her multiple sclerosis, causing her to retire from her job as a school teacher, and rendering her unable to do further work.  For this the jury gave her just shy of $60,000,  and for that the trial court gave her a new trial.  The court affirms, finding broad discretion of the judge in determining that the jury's verdict resulted in a manifest injustice.  Perhaps most notable in the calculus employed by both courts is that the defendant's lawyer in closing had told the jury that an award of $90,000 would be sufficient.


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