Answer:  What does Tiger Woods want for Christmas?

Here’s a picture from my day job, when I’m not writing the blog. 

Seriously, thanks to everybody who’s stopped by over the past year.  I hope you have a good holiday, and I’ll see you back here on January 4th.

Holiday schedule.  This is my last post for the year; I’ll be back on January 4 with a rundown of all the major developments in the law over the next two weeks.  Which is to say, none.  The French shut down the country in August so that everybody can go on vacation; we do pretty much the same during the holidays.  I’ll find something to write about when I come back, I’m sure.  In the meantime, I’ve put out my annual memo to the staff and co-workers here reiterating my policy about not accepting gifts from them worth more than $50.  They assure me they’ll have no problems whatsoever in complying with that.

Something to think about during the holiday games.  Law and football intertwine over at the Volokh Conspiracy, which cites an article arguing that instant replay should be modeled after the appellate law concept of de novo review.  As football fans know, the present standard for overturning the referee’s decision is “conclusive” or “indisputable” evidence, which the author argues is analogous to the “abuse of discretion” standard of review.  Abuse of discretion is appropriate where the issue is management of the trial, or where the trial judge is in better possession of the facts; in instant replay, though, because of multiple camera views and slo-mo, the reviewer is arguably in a better position to make a determination than the referee was.  I’d probably feel better about the argument if abuse of discretion was limited to the situations described in the article.  I’ve found it to be primarily a handy rubric by which appellate courts can shuffle errors under the rug when they want to uphold a particular result.

Random observations on race and crime.  Got the police report on a drug case I just got assigned to, where my client and his confederate were picked up after a drug buy.  The latter had a .38, leading to firearm specifications for the both of them, although my client insisted to the police “I didn’t know the white boy had a gun.”  Like that matters.  In my experience, “blame it on the white guy” has proven to be spectacularly unsuccessful as a criminal defense strategy. 

Ice Watch.  As I’ve mentioned before, the Supreme Court’s decision early this year in Oregon v. Ice implicitly overruled our supreme court’s decision in State v. Foster.  The latter had held that Ohio’s scheme of imposing consecutive sentences violated Blakely v. Washington because it required judicial factfinding.  In Ice, though, the Court examined a statute very similar to Ohio’s, and concluded that there was no constitutional bar on a legislature’s requiring judges to find facts before imposing consecutive sentences.

This issue has been raised in a number of appellate cases, and the response to date has been that it’s up to the Ohio Supreme Court to rectify the problem, if there is one.  (Although the Supreme Court has raised the issue a couple of times in oral argument, there is presently no case on its docket squarely presenting the question.)  The 5th District’s decision last week in State v. Smith puts a new twist on that, though.

Smith was sentenced less than two months after Ice was decided, and claimed that his consecutive sentences were invalid, because the trial court did not engage in the fact-finding that was required by RC 2929.14(E)(4).  As I’ve mentioned before, 2929.14 has been amended 11 times since Foster, and the legislature has never changed the provisions regarding consecutive sentencing.  But one of those amendments, the Smith court noted, was on April 7, 2009, after Smith was sentenced:

Because Appellant was sentenced prior to the effective date of amended R.C. 2929.14,albeit after Ice, we find Appellant cannot benefit from the amendment, and Foster controls.

Of course, this makes no sense; the statute as it pertained to Smith’s argument was no different before the amendment than after it.  But think about this for a minute.  Does this mean that the statutory amendment after Ice effectively overrules Foster?  The clear holding of Smith is that if you were sentenced before the statute was amended after Ice, then Foster still controls; the flip side of that is that if you were sentenced after the amendment, then Foster doesn’t.  It’s certainly an argument worth considering. 

One important note:  the Smith court found “persuasive” the State’s argument that Smith waived the issue by not specifically objecting to the trial court’s failure to make findings before imposing consecutive sentences, but decided to address the merits of Smith’s argument anyway.  Defense attorneys need to raise the Ice issue at sentencing, or else risk having an appeals court decide that it was waived. 

New ideas for fighting the drug war.

Have a good holiday.  See you in a couple of weeks.

Interesting week for Blackberry users.  On Monday the US Supreme Court granted cert in a case on the question of whether a police department violated an employee’s constitutional rights by inspecting personal text messages he sent on a government pager.  On Tuesday, the Ohio Supreme Court rendered a 4th Amendment decision so defense-friendly it has me looking for other signs of the Apocalypse. (keep reading…)

About the only thing more dangerous in criminal law than an imaginative prosecutor is a lazy Congress. (keep reading…)

Although there are only a handful of cases dismissed each year for speedy trial violations, few things so occupy the minds of judges as the possibility of such an event befalling them.  The suggestion that all publicity is good publicity is of little comfort to the judge who goes out to fetch his morning paper and finds his name prominently mentioned in the story above the fold about how Slasher McGee is now a free man, his 43 rape charges dismissed because said judge didn’t see to it that McGee was brought to trial within the specified time. (keep reading…)

Eric and Kathleen get a divorce on June 19, 2007.  There’s a pension which has to be divided, and so the court decree orders Kathleen to submit a Qualified Domestic Relations Order doing that.  Eric wants to appeal, but up to that time most people thought the law was that you couldn’t appeal until the QDRO was journalized.  Two days after it is — five months after the journal entry of divorce – Eric appeals.  The very next day, the Supreme Court, in Wilson v. Wilson, says that the journal entry of divorce is a final appealable order, even before the QDRO is issued.

You wouldn’t think that it would take the Supreme Court to tell the court of appeals that it shouldn’t apply Wilson retroactively and toss out Eric’s appeal as untimely.  But it does.  So in Rothman v. Rothman, the court does exactly that, and further instructs the appellate courts to allow any “similarly-situated litigants” – anyone who’s had an appeal dismissed based on retroactive application of Wilson – to file notices of appeal, so long as they do so before March 31, 2010.

Several months ago, in State v. Cargile (discussed here), the court held that a person who was arrested and did not disclose that he had drugs on him before he was taken to jail could be convicted of illegally transporting narcotics into a detention facility.  State v. Cole presents the same issue, with one difference; the appellate court’s opinion doesn’t indicate whether Cole was warned that thing bringing contraband into the jail could result in additional charges, or whether he denied possessing it, both of which were the case in Cargile.  So the court remands it back to the 8th District to consider all that, and to decide whether it would make a difference.  After which the Supreme Court, a few years down the road, can answer the same question it could have answered last week.

Last, back in July I discussed the 8th District’s decision in State v. Brooks, in which it vacated the defendant’s gross sexual imposition convictions, finding that hearsay had been improperly admitted and that, without the hearsay, there wasn’t sufficient evidence for conviction.  I’d mentioned that this might be a problem because of the Supreme Court’s decision last year in State v. Brewer, in which the court held that in determing the sufficiency of the evidence, the appellate court had to consider all the evidence, including that which had been improperly admitted.  My opinion that “it may be that Mr. Brooks isn’t completely out of the woods just yet” was confirmed last week; the Supreme Court reversed and remanded Brooks for reconsideration in light of Brewer. 

Four opinions finally emerge from the Supreme Court in Washington, none of any great interest to me; much more fascinating was the oral argument in two of the ”honest services” cases before the Court.  Don’t know what that means?  You can bet that Jimmy Dimora and Frank Russo do, and so will you, if you stop here on Wednesday.  For right now, though, we’ll head over to the courts of appeals… (keep reading…)

Get me to the court on time.  Must be something in the water.  Last week I regaled you with the story of Shawn, for whom I had worked out a fairly sweet deal, only to have him be a no-show on the day of trial.  Two days later the bailiff called and told me he was in custody, and today we had a pretrial.  The reason for his absence, he explained to me, was that he was in the workhouse on a misdemeanor case.  Of course, the day before he went into the workhouse, I spent an hour traipsing around the crime scene with him.  And I reminded him of the trial we had in a week.   You’d think he might have mentioned, “Oh, by the way, I’m going into the workhouse for a week tomorrow.’”  I guess his impending incarceration escaped him.

The topper is I had a trial scheduled for Wednesday in another case, but it got kicked because the prosecutor was in an aggravated murder trial.  So two hours after I get back to the office, I get a call from my client, apologizing because he’d overslept and just woken up.  I told him the case had been continued, and he assured me he was going to run right out to Sears and get an alarm clock.  Probably do him in good stead if he ever gets a job.

The march of technology.  A couple of years ago, I caught a video of a man being tasered to death in an airport by Canadian police.  You can watch it here; it’s not for the faint of heart.  It wasn’t an isolated incident.  Six months ago Moberly, Mo. shelled out $2.4 million in a settlement where a mother had watched her son tasered to death by police after a drunk driving arrest, and in March Bay City, Mich. police tasered a 15-year-0ld boy, even after he was allegedly handcuffed, resulting in his death.  In fact, one web site which tracks such incidents claims there have been 50 taser-related deaths just this year.

There’s certainly room for debate about the legitimate use of tasers, but it’s equally clear that applying 50,000 volts to a human being is something that should be done with some measure of discretion.   A lot of police departments don’t seem to have gotten the memo, though.  A 14-year-old New Mexico girl required surgery to remove a taser dart from her head, after having been shot by the police chief after he interceded in an argument between her and her mother.  Just last week Denver police tasered a 10-year-old, and police in Ozark, Ark. used a taser on a 10-year-old girl who was pitching a fit and refusing to take a bath.

A goal for aspiring lawyers.  I’m often annoyed when a court of appeals rejects an argument by saying it has “no merit.”  None?  It may not be a winning argument — well, obviously, it wasn’t — but that doesn’t mean it was completely devoid of any legitimacy.

Then again, I’ll take “no merit” over Iowa District Court Judge William Pattinson’s rejection of a motion for change of venue on the grounds that it “is so incredibly asinine, ill-conceived, unfounded and personally and professionally insulting that it is unworthy of any discussion or consideration.”

Things you might want to know.  So I’m sitting in my office yesterday when I get a call from my buddy Tom, one of the top criminal lawyers in town.  He was in the middle of an aggravated murder trial, and everybody, himself included, had just learned that his investigator had taped the witness’ interviews without the witnesses knowing about it, and he was catching hell from the judge and the prosecutors, first, because of the surreptitious recording, and secondly because it hadn’t been handed over in discovery;  the judge and prosecutors were claiming the tapes were tangible evidence under CrimR 16(C)(1), and had to be disclosed.

The first part wasn’t a problem; neither Federal nor Ohio law prohibits recording conversations as long as one of the parties to it consents.  The rest wasn’t, either.  If you look at 16(C)(2), it specifically exempts from disclosure “statements made by witnesses or prospective witnesses to the defense attorney or his agents” (as well as “reports, memoranda, or other internal documents made by the defense attorney or his agents in connection with the investigation or defense of the case”).  And if there’s any lingering doubts, tell everyone to look up State v. Lockett, a 1976 Supreme Court decision in which the court reversed a conviction and death sentence because — wait for it — the trial court had refused to allow a witness to be impeached with taped statement to a defense investigator because the defense hadn’t turned it over in discovery.  That’s “on all fours,” as we say in the law biz. 

Of course, the reason I was able to rattle all this off was because I happened to be working on an appeal that involves that very issue.  But I didn’t tell Tom that.  He thinks I’m a smart guy, and I wasn’t about to shatter his illusions, especially so close to Christmas.  Might cause him to take a second look at this whole Santa thing, too.

In June of 2002, Kerry Perez tried to rob a drive-through liquor store in Dayton.  (Is it just me, or did you do a double-take at the term “drive-through liquor store”?  But I digress…)  Things didn’t go well; the owner put up a fight, resulting in a gun battle in which Perez’s accomplice was the only casualty.  A year later, Perez decided to take down the Do Drop Inn, a bar in Springfield, and the results weren’t as fortunate:  Perez killed one of the customers, Ronald Johnson.

Perez apparently spent the next few days telling his family and anyone else who would listen about how he’d killed a man, so it came as little surprise to anyone save him when he was arrested and charged with aggravated murder in the latter shooting.

But that’s not all Perez had done. (keep reading…)

You’d think that 43 years after Miranda was handed down, we’d have a very clear idea of what exactly it required police officers to advise a defendant before questioning.  After reading Monday’s oral argument in the Supreme Court on Florida v. Powell, maybe not.

(keep reading…)

As you might have guessed, I read a lot of cases for this blog.  Reading cases is just like any other skill:  the more you use it, the better you get at it.  One of the things I’ve learned is to skim the opinion for the assignments of error.  If they’re manifest weight and insufficiency arguments, well, that’s a case that’s usually not getting read, primarily because (a) they’re so fact-specific that there’s no legal principles which are discernible, and (b) they’re almost invariably losers.

Sometimes, I get the feeling that appellate courts treat them the same way.  Lucky for Franco Stephens that the 8th District didn’t share that feeling. (keep reading…)