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Friday roundup

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.


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