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What's up in the 8th

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.

Sixteen-year-old Ricardo Mason was killed in 2002 while riding in a stolen car.  The police version was that after the car crashed, it backed up and tried to run over the officers who were approaching it; they fired into car, wounding the driver and killing Mason.  The Mason family's version was something other than that, and apparently "something other than that" was sufficient to persuade the City of Cleveland to pay out $1 million to settle the case last year.  In re Estate of Mason puts the finishing touches on the case, resolving issues of who -- including the attorneys -- should get what.  The magistrate found that the lawyers had performed "extraordinary services" and were thus entitled to get 40% of the settlement; the trial judge disagreed, reducing it to 33%.  The court finds that unreasonable, and cites ample evidence for its conclusion; perhaps the best proof of the complexity of the case is that the plaintiffs' brief in opposition to the motion for summary judgment was 92 pages long, with 106 exhibits.

The remaining aspect of the case is what to do with Ricardo's father and half-sister.  Despite the father not having any contact with Ricardo since 1993, and his daughter Sierra's having never met Ricardo, they both show up when it's time to distribute the settlement.  A parent is rebuttably presumed to have suffered a loss, so dad gets 42 large; no such presumption for anyone else, so Sierra gets zip.  The only evidence of the step-sister's loss is that she felt "sad" when she heard that Ricardo had died, and Judge McMonagle's opinion notes that many people probably felt the same way, and they're not getting any of the loot, either. 

This week's Handy Practice Pointer is that RC 2125.02(A)(1) provides that a parent who's abandoned the child isn't entitled to collect in a wrongful death suit.  To do that, however, the estate has to file a motion in the court where the action's pending seeking to have the fact of abandonment established.  The estate's lawyers were apparently too busy writing 92-page briefs to do that, though.

Another helpful practice pointer is found in Bozeman v. CMHA, a lawsuit against the metropolitan housing authority for using lead paint on its premises.  The Authority belatedly filed a motion for judgment on the pleadings, which the trial judge decided was actually a motion for summary judgment, and denied it because he hadn't granted leave to file it.  The appellate court has a different take:  given the Supreme Court's pronouncements exalting sovereign immunity, it will review the issue de novo.  It finds that "the issue whether the presence of lead paint is a 'physical defect' appears to be one of first impression," and that, for whatever reasons, this issue "was not addressed in CMHA's motion."  No matter:  the plaintiff's claim also alleges breach of contract for violations of the Landlord Tenant Act, and since sovereign immunity does not apply to actions "to recover damages from a political subdivision for contractual liability," well, there you go.

State v. J.G. provides some nifty lawyering, a good result, bad reasoning, and some insight into Ohio's expungement statute, which we'll discuss in more detail tomorrow.  In 1984, J.G. pled guilty to aggravated assault.  Last year, she moved to vacate her guilty plea, because otherwise she'd lose her job as a school maintenance worker; Ohio statute bars school boards from hiring anyone convicted of a "crime of violence," no matter what the crime was or how long ago it was committed.  The court grants it, and the State appeals.

Time proves to be the critical factor here, but it's not the 24-year lapse between the conviction and the filing of the motion to withdraw the plea, it's the ten days that the State had under the local rules to file a response to the motion.  It wasn't until 27 days after the motion was filed that the State asked for an extension of time to respond to it, and finally filed it on January 14, five days after the trial judge found that the motion was "unopposed" and granted it.  The court determined because of the violation of the rules,

we cannot find that the trial court abused its discretion in finding that the motion was unopposed by the State and granting J.G.'s motion to unseal her records and withdraw her guilty plea.

That's a good result, but somewhat questionable reasoning.  The first part of the statement is true -- the motion was indeed "unopposed" at the time the trial judge ruled on it -- but the appellate court still has to consider whether the trial court was right.  It may very well have been:  the fact that somebody could lose their job over something as stupid as this certainly might qualify as the "manifest injustice" necessary to warrant allowing them to withdraw their plea, even a quarter-century later.  Yeah, I like a defense victory as much as the next guy, but I get wary every time a court uses a rules technicality to get out of considering something on the merits, because that's the kind of thing that can come back to bite you.

Maybe that'll wind up in the State's motion for reconsideration next week.

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