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.