January 2010 Archives
My dream come true: more ways to look up cases. Or rather, new ways. In the face of declining revenues growth -- 1% to 2% a year, as opposed to 5% to 7% a year in the past -- Lexis and Westlaw have decided to give their programs a major facelift. More than just a facelift, actually. This article, which takes a first look at Westlaw's overhaul, scheduled to debut next Monday, points out that the "this is no mere cosmetic redesign. WestlawNext completely changes the search interface and the search engine behind it." (A screenshot of the new interface, substantially streamlined from the present one, can be found here.) Lexis is coming out with a revamped product -- imaginatively titled "New Lexis" -- later this year.
As the countless legions of regular readers of this blog can contest, I take second place to no one in lambasting the current state of Ohio's allied offense law. Well, maybe second place to one person: Ohio Supreme Court Justice Judith Lanzinger. Judging from her partial dissent in yesterday's decision in State v. Williams, she's none too pleased with it, either.
In September of 2008, Ohio's New, Improved Castle Doctrine went into effect. This wasn't the one from Merry Old Englande, which held that the duty to retreat in self-defense cases did not apply if the defendant was in his own home. The new statute, RC 2901.05(B), as I explained here, basically creates a rebuttable presumption that someone in his own home who uses deadly force to expel an intruder has acted in self-defense.
Last week's decision by the 8th District in State v. Johnson is the first appellate decision on the new statute, and the result is not helpful.
No search cases, the court addresses the Castle Doctrine, which we'll discuss tomorrow; the rest is relatively ho-hum. We'll take a look anyway, 'cause that's why you pay me the big bucks.
As you might gather, I read a lot of cases. I do not read cases which are 183 pages long and begin,
KENNEDY, J., delivered the opinion of the Court, in which ROBERTS, C. J., and SCALIA and ALITO, JJ., joined, in which THOMAS, J., joined as to all but Part IV, and in which STEVENS, GINSBURG, BREYER, and SOTOMAYOR, JJ., joined as to Part IV. ROBERTS, C. J., filed a concurring opinion, in which ALITO, J., joined. SCALIA, J., filed a concurring opinion, in which ALITO, J., joined, and in which THOMAS, J., joined in part. STEVENS, J., filed an opinion concurring in part and dissenting in part,in which GINSBURG, BREYER, and SOTOMAYOR, JJ., joined. THOMAS, J., filed an opinion concurring in part and dissenting in part, mostly because he thinks that KENNEDY, J., is such a tool.
Okay, I made that last part up, but you get the idea. The case, of course, was the Supreme Court's long-awaited decision last week in Citizens United v. FEC. The Cliff Notes version is that corporations (and unions) are now free to spend money on political advertising directly, rather than have to go to the pretense of funneling it into political action committees. The effect of this on our democracy has generated great wailing and gnashing of teeth from the Usual Suspects and predictions of our being inundated by massive political advertising in the coming election. Like we weren't before. One of the best consumer purchases I ever made was TiVo a few years back, and you couldn't get me to watch live television at gunpoint any more.
Nothing out of Columbus, so let's head over to the courts of appeals.
Civil. 6th District holds that whether arbitration provision was part of contract is question of law, not question of fact, reviewed de novo and not under abuse of discretion standard... 2nd District says court erred in dismissing negligence action against minor, should have appointed minor's mother as guardian ad litem...
Criminal. Jury returns not guilty verdict of disorderly conduct/intoxication, trial court amends charge to disorderly conduct/causing annoyance and convicts defendant of that; 6th District says that second is not lesser included offense of first; yeah, and then there's that pesky jury trial/double jeopardy thing... Trial court not required to advise defendant of what sexual classification he'll get, but if it does, must advise him correctly; 8th District vacates plea where defendant told he'd be a Tier 1 offender, was actually Tier II... 3rd District affirms forfeiture award in drug case, good discussion of basic law on subject... 12th District finds no ineffective assistance of counsel in failure to file motion to suppress identifications, call expert witness on identification... 10th District reverses grant of judicial release for judge's failure to comply with statutory requirements regarding necessary findings... 2nd District affirms dismissal of enhancement for prior uncounseled conviction, excellent discussion of requirements for valid waiver of counsel...
Further confirmation of my wisdom. It's long been my view, based upon my personal and professional experiences, that every third home contractor should be taken out and shot, if only as a lesson to the others. Additional evidence of that is provided by Irby v. Strang, where the plaintiff had signed a contract for $33,000 for repairs to her home. Dissatisfied with the result, she'd sued, only to be presented with the defendant's contention that the contract contained an arbitration provision. Irby claimed the contract she signed contained only three pages, and that the arbitration provision was part of a six-page document containing "supplemental conditions" she was given after work was started. The first page of that document was numbered "page 4," and the last, numbered "page 14," contained the arbitration provision. The court of appeals affirmed the denial of the motion to refer the case to arbitration, agreeing with the trial judge's observation that "it would be peculiar that the parties would be signing the third page of an alleged 14-page contract."
Am I missing something? Here's the 9th District's recitation of the facts in State v. Little:
On the evening of July 30, 2007, Officer Orlando Perez of the Lorain Police Department received a "serious" call for assistance in locating "persons of interest[,]" including a "thin black male, young, wearing dark clothes and long shorts[.]" Officer Perez observed an individual matching the description and ordered the man to the ground and put handcuffs on him. The man was compliant and stated that his name was Terry Little. Officer Perez ran a warrant check and discovered Little had an outstanding warrant for failure to appear in court. Officer Perez then arrested and searched Little. During the search, Officer Perez found a large clear plastic bag containing crack cocaine in Little's left rear pants pocket.
Given the nature of the dispatch ("'serious' call"? "person of interest") and the paucity of the description, I think there's a legitimate issue as to the validity of the stop. Yes, there's a warrant, but if the stop's bad, you can make an argument that you never get there. It's not a sure-fire winner on a motion to suppress, but I've seen better searches than this get tossed.
But nobody even made the argument. No motion to suppress was filed in the trial court, and the only issues raised on appeal were weight and sufficiency of the evidence.
Consistency in sentencing. Everybody agrees that it's a bad thing if two defendants charged with the same crimes and with similar backgrounds wind up with wildly disparate sentences. Preventing that was the whole idea behind the enactment of the Federal Sentencing Guidelines back in 1984, where the various characteristics of the defendant and the crime he'd committed were plugged into a matrix, which would spit out a sentencing range -- say, 51 to 61 months -- and, except in rare circumstances, the judge would be limited to imposing a sentence within that range. Consistency was also a motivating factor in the passage of sentencing reforms here in Ohio in 1996, with the matrix idea being rejected in favor of "guided discretion": the enumeration of factors which judges should use in fashioning appropriate sentences.
Back in 2007, Cuyahoga County Common Pleas Court Judge Dan Gaul believed that a defendant in a felonious assault case was behind the victim's disappearance just before trial. He stopped jury selection, declared a mistrial, and removed himself from the case, after making a statement to the media and declaring his suspicions about the defendant in open court. That earned him an investigation by Ohio's Office of Disciplinary Counsel, resulting in a recommendation of a one-year suspension, with all of it stayed. Gaul maintains that the disciplinary action was motivated by Gaul's speech at a legal symposium a couple years back, where Gaul criticized chief disciplinary counsel Jonathon Coughlan for going after small-time lawyers and ignoring bigger cases of misconduct in the legal community.
After the Supreme Court's decision two months ago in Disciplinary Counsel v. Smith, the betting here is that Justin Smith thinks that Gaul might be on to something.
Reading the presentence report got my hopes up. Finding out that one of the victims had shown up for the sentencing got them back down again.
In the last three weeks before this past one, the 8th handed down only thirteen decisions. They make up for that with a vengeance by doubling their output last week. Fifteen criminal decisions find their way onto that list, but defendants get no love, managing merely to eke out a remand for resentencing in a case or two.
The only significant decision out of Washington last week was Smith v. Spisak, which I discussed on Friday. Some decisions are expected on Wednesday, the most eagerly anticipated of which is the one on campaign finance reform, which you probably won't read about here. Two cases that would merit discussion -- one on criminal forfeiture laws and other other on whether prosecutors have immunity for presenting perjured testimony -- won't be finding their way here, either; as I'd mentioned before, both were dismissed after the parties arrived at settlements.
Smith was one more decision than the Ohio Supreme Court came out with last week; not even a disciplinary opinion chastising some miscreant attorney. I did see an announcement from the court that they'd given the parties in Turner v. Levin 14 days to explain why the case shouldn't be dismissed for lack of jurisdiction. Hmmm, could be interesting, I thought. It's not; it's a tax board appeals case, and the question is whether the case should be dismissed because of "appellant's failure to specify in his notice of appeal the 'errors complained of' as required by R.C. 5717.04." Rest assured that you will read about me becoming the newest member of the Chippendales before you read about tax cases here.
So, in anticipation of better days, let's check out what's happening in the courts of appeals, where it's also a slim menu, especially on the civil side...
And Phillip Morris says smoking is good for you. A month ago I mentioned complaints about the increasing use of Tasers by law enforcement personnel, which has allegedly led to a number of deaths. I labeled the item "March of Technology," and in a true indication of how technologies overlap, you can find the 20 Top Taser Videos on YouTube.
Of course, technology and law overlap too, and Taser International, which manufactures -- well, if you can't guess, you're too dumb to be reading this blog -- has been the subject of numerous lawsuits over the past few years. Up until last year, it had an unblemished record of success: 70 cases had been decided in its favor or dismissed, although it had reputedly agreed to settle some of those cases. In July, though, a California Federal court jury hit up Taser International for $6.2 million for the family of a man killed after being hit multiple times by Salinas police officers using Tasers. That prompted a drop in the company's stock of more than 10%.
The company rebounded with a win in Kentucky last month, when a jury returned a defense verdict in another suit involving Death by Taser. Turns out that might go by the boards: the plaintiffs' attorneys have asked the judge to set aside the verdict because a number of jurors, including the foreman, had researched Tasers --more overlapping technologies -- on the Internet. Where did they look for their research? The web site of Taser International.
Fleeting [expletives]. I've written a number of posts (here, for example) on the FCC's "fleeting expletives" policy. The short version goes like this: up until 2004, the FCC would not punish a TV or radio station for use of profanity unless the material "dwells on or repeats at length descriptions of sexual or excretory organs or activities." At that point, the FCC decided to change its policies, and announced that henceforth any use of the word "fuck" would be punishable. "Shit" was subsequently added to that list.
Fox TV sued, and the 2nd Circuit reversed, finding that the policy hadn't met the requirements of the Administrative Procedure Act. The opinion also said that the change raised questions of constitutional law, on both First Amendment and vagueness grounds, but didn't decide them. Last year the Supreme Court reversed, but remanded the case back to the 2nd for reconsideration of the constitutional issues.
The 2nd heard oral argument on the case on Wednesday, and from the looks of it (video here), things don't look so good for the FCC. The judges openly baited the FCC's lawyer, attempting to get him to say the naughty words. He resisted in manly form, going no further than references to the "F-word" and the "S-word." His argument that such words could cause harm to children was met with one judge's rejoinder, "Don't people in small towns use these words?" Another judge asked whether those people with no tolerance for profanity keep their children from going outside "because they might hear a nasty."
As I'd mentioned in my post addressing the Supreme Court's decision in Fox, the Court didn't reach the constitutional issue, but the decision was only 5-4, and Justice Thomas wrote a concurring opinion questioning the continued vitality of the Court's 1976 decision in Red Lion which gave the FCC authority to regulate "decency" in the first place. So you might want to get a head start on getting earmuffs for your kids when they watch television. I've been in, seen, and read hundreds of oral arguments, and I've never seen a panel so openly hostile to one side in its questioning. This one's coming back.
Spisak update. Back in October I talked about Frank Spisak, the erstwhile Neo-Nazi who was sentenced to death in 1983 for killing three Cleveland men. The 6th Circuit had granted habeas and vacated his sentence, finding the jury forms improper and the conduct of Spisak's lawyer in oral argument during the penalty phase inadequate. I thought there was some substance in the latter contention, but wrote,
I don't believe in the death penalty, but one comes away from looking at everything involved here with the feeling that if there is indeed a case to made for a it, Spisak is Exhibit "A," and nothing anybody could have possibly said would have dissuaded a jury from imposing that punishment.
Earlier this week, the Supreme court, in Smith v. Spisak, came to pretty much the same conclusion. A claim of ineffective assistance of counsel requires proof that (a) the attorney's conduct was deficient, and (b) it prejudiced his client. Previous decisions have established that if a court determines there was no prejudice, then it doesn't need to consider the deficiency question, and that's exactly what the Court did here:
We assume for present purposes that Spisak is correct that the closing argument was inadequate. We nevertheless find no "reasonable probability" that a better closing argument without these defects would have made a significant difference.
One point worth noting, though. I've mentioned before that appellate courts tend to sweep a lot of ineffective assistance claims under the rug by deciding that they fall within the category of "trial strategy and tactics." That was precisely the argument that the State raised here, contending that Spisak's counsel's closing argument was a reasonable strategic decision "to draw the sting out ofthe prosecution's argument and gain credibility with the jury by conceding the weaknesses of his own case." Justice Stevens, in his concurring opinion (the only one; the decision was unanimous) had a good response to that: "But, surely, a strategy can be executed so poorly as to render even the most reasonable of trial tactics constitutionally deficient."
That's a little line which should find its way into some appellate briefs.
I finally figured out how to win the case on the way in to work the morning of the hearing.
Last June, the Supreme Court ruled in Melendez-Diaz v. Massachusetts (discussed here) that results of laboratory tests were testimonial evidence under Crawford, and thus the person who performed those tests had to be subject to cross-examination at trial. On Monday, the Supreme Court had oral argument in Briscoe v. Virginia, and it may wind up taking another look at Melendez-Diaz.
8th District, eight cases -- that was the court's output this past week. So instead of quantity, we'll go with quality, and take an extended look at one of them.
The Ohio Seven issues a trio of significant cases, two on allied offenses. State v. Underwood involves the additional issue of a defendant's right to appeal a sentence. Underwood had pled no contest to four counts of theft with an agreed sentence of two years, but argued on appeal that the two counts should have merged. RC 2953.08 prohibits a defendant from appealing an agreed sentence that is "authorized by law," and the court concludes that failure to merge the allied offenses means the resulting sentence wasn't authorized by law. The result should clarify one issue. A number of courts have held that a defendant waives his right to challenge failure to merge allied offenses by failing to object at sentencing. The Underwood court specifically notes that failure to merge is plain error.
State v. Whitfield purports to answer a simple question, but does so in a way that might open up whole new problem. When a defendant is convicted of allied offenses, who gets to decide which offenses are merged? The State, the court answers, also holding that the determination of the defendant's guilt remains intact after the merger. Precisely what a "determination of guilt" means in this context is unclear, as is its effect. It's not a conviction, because the court notes elsewhere that a conviction includes both a finding of guilt and a sentence; if the defendant is not sentenced, there's no conviction. This also emphasizes Justice Lanzinger's previous point that the court's jurisprudence on post-release controls -- that failure to properly impose PRC results in a void sentence -- means there's no conviction, either. And since PRC can't be imposed after a defendant finishes his prison term, does this mean that such a defendant was never "convicted" of the crime? Imagine that in the context of a weapons under disability offense.
One civil case of note: in Beckett v. Warren, the court holds that a plaintiff in a dog-bite case can pursue both a common-law and statutory action; the former requires proof of the owner's knowledge of the dog's vicious propensities, while the latter is strict liability, but does not allow punitive damages. The majority rejects the lower courts' holding that a plaintiff must elect to pursue one or the other at trial, holding he can pursue both, over Justice O'Donnell's vigorous dissent that the result will cause "chaos and confusion." O'Donnell can't resist a weak pun, saying that the majority is "throwing these cases to the dogs," leaving us thankful we were spared something like "the majority doesn't give a Shih Tzu that juries will have difficulty separating the two causes of action."
By the way, 0ne thing you will learn if you watch the oral argument in Beckett: never, ever say to a judge, "If you read my brief..."
With that admonition, on to the courts of appeals...
News from the dark side. Maricopa County is the fourth largest county in the country. And, at least as far as the judicial system is concerned, things have pretty much gone to hell there.
A couple months ago, I showed a video of a deputy sheriff rifling through an attorney's file during a hearing. You can watch it here, too; it's starts about 45 seconds in. The most astonishing thing is the brazenness of the act, and the fact that it occurred in the plain sight of the judge and the prosecutors, who said nothing. (The defense attorney's back was turned.) Although Maricopa County Sheriff Joe Arpaio stood by his man, the upshot was that the Deputy was held in contempt and sentenced to 30 days in jail unless he apologized. Which he didn't.
Arpaio bills himself as "the toughest sheriff in the country," and has earned a reputation for using his office to punish his political enemies. He burnished that reputation when, the next day, Joe Thomas, the county prosecuting attorney, who by all accounts is a stooge of Arpaio's, had the judge who sentenced the deputy sheriff indicted for bribery and obstruction of justice. As this account indicates, the basis for the charges is murky at best; Thomas confessed at the press conference announcing the indictment that he probably wasn't "explaining this well," and inexplicably appealed to the journalists to "help him out."
The journalists weren't willing to do that, and neither is the defense bar. To protest the indictment of the judge, and Arpaio's veiled threats against other members of the judiciary, on Monday of Christmas week, they held a noon rally at the county courthouse. As the picture shows, not exactly your typical protest.
Career alternatives. Frank Pignatelli had a good gig going. He was one of the top criminal defense attorneys in Akron, and represented defendants in several major drug cases. Apparently, his representation continued beyond the courtroom; Federal investigators looking into an extensive crystal meth and ecstasy operation intercepted numerous telephone conversations in which Pignatielli was overheard instructing members of the enterprise about ways to avoid law enforcement detection and how to launder proceeds of the drug trafficking. He also brought in new distributors.
In December of 2005, cops raided Pignatelli's home and found $639,000 in cash. Turns out that didn't affect Pignatelli's representation of his clients. He continued to do so, while working as an informant for the Feds, resulting in 30 arrests. The latest produced a 15-year prison sentence for a former client of Pignatelli's.
Of course, this adversely impacted the viability of Frank's defense practice here in Ohio, so, heeding the advice of Horace Greeley, he headed west, setting up shop in Denver, Colorado, where he wound up representing drug defendants in Federal court. The past is prologue, as they say.
Turns out that Frank may have to start studying for the Malaysian bar exam. Colorado authorities got wind of his background, and checked his bar application. Sure enough, he'd answered "no" to the question of whether he'd ever been under investigation, which was somewhat at odds with being on the brink of indictment in a drug conspiracy. (All charges against Pignatelli were dropped in return for his cooperation.) Pignatelli's law license in Colorado was suspended earlier this year.
It may be that Frank is simply ahead of his time. Earlier this week came the story of Terry L. Haddock, a 52-year-old Omaha lawyer:
More than 30 times this year, investigators say, Shannon Williams orchestrated a multimillion-dollar marijuana ring from inside the Douglas County Jail.
In one-on-one sessions with a jail visitor, Williams would use the visitor's cell phone to call associates and instruct them on how to divvy up the gobs of marijuana and money his operation was taking in.
He would confide in the visitor about his past exploits, claiming he had earned $15 million to $20 million while operating the marijuana ring in Omaha. He would ask the visitor to launder the money he was making. And he would use the visitor's cell phone to try to arrange hits: one to beat up his longtime defense attorney and another to "put a few into the back" of an Omaha man who had been messing with Williams' girlfriend.
All the while, the visitor would take it in, nodding and promising to follow Williams' orders.
Turns out that jailhouse visitor was no friend, no ally, no dutiful worker. He was a government informant.
And here's the jaw dropper: He was a lawyer -- an Omaha attorney who Williams says was representing him.
Maybe he and Frank can start a firm together.
'Tis no longer the season, and some decisions are starting to trickle out of the Ohio Supreme Court; there were two on Tuesday, which I'll talk about next week. Today, we'll take a look at some recent oral arguments and see what might be happening down the road.
According to Lexis, last year there were 362 Ohio decisions in which the phrase "post-release controls" appeared. There are cases dealing with exactly what a judge has to say about it on a plea, at sentencing, what happens if the judge doesn't say that, and how it can be rectified. Back in 2006, the legislature even got into the act, passing several statutes dealing with the subject. In one of its final cases for 2009, the Ohio Supreme Court took a look at one of them. The result served mainly to remind one of the three-way gunfight which served as the climax for The Good, The Bad, and The Ugly.
If you're a family member of an 8th District judge and didn't get much for Christmas, don't buy the excuse "but I was too busy working to shop"; the court handed down a paltry five decisions in the past two weeks. It might have been simple exhaustion, however; the 8th handed down 1,043 opinions last year. That compares to 613 from Franklin County and 121 from Hamilton County. In fact, the 8th produced almost 30% of the total appellate district opinions for the past year.
So let's raise a glass of eggnog and take a look at the closing cases of the decade.
As you can see, my New Years resolution to start exercising regularly is already paying big dividends. I took time out from the gym to wade through the decisions that have come down since my last Case Update. Nothing from the US Supreme Court; they're gearing up for the oral argument next Monday in Briscoe v. Virginia, which considers the viability of Virginia's procedure of permitting reports laboratory results at trial, and leaving it up to the defense to subpoena the analyst if it wants live testimony. (Case discussed here.) The Ohio Seven came down with one consequential decision in the last few weeks, involving the legislative amendments to the procedures for implementing post-release controls; I'll talk about that one in detail on Wednesday.
Meantime, my BFF Lexis tells me that there were 300-some appellate cases decided in the last three weeks, so let's get to it...
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