February 2010 Archives
An entendre, bartender, and make it a double. Only in Texas: in 1990, Charles Dean Hood was sentenced to death for killing his boss and the boss's girlfriend. There wasn't much doubt of his guilt; his fingerprints were found not only on the garbage bags that covered the dead woman's body, but on the note he had left in an attempt to throw the police off his trail. The note, purportedly from her, claimed that she had gone out jogging. The attempt failed because Hood had misspelled her name.
But Hood wasn't the only one in the case operating with his Brainpower Switch set on "dim." Last year his lawyers discovered that the trial judge in his case had been sleeping with the prosecutor who tried him. According to this article, after a 6-3 decision by the Texas Court of Criminal Appeals holding that this didn't warrant a stay of Hood's execution, the case may be heading to the Supreme Court. Meanwhile, Judge Verla Sue Holland, who presided over Hood's trial, is not taking all this lying down. As the article notes, with a stiff upper lip,
In her deposition, Judge Holland said she had lately become angry with Mr. Hood’s lawyers for “annihilating my reputation.” She said she had asked the attorney general’s office to represent her in Mr. Hood’s challenge to her conduct because she thought she needed to fight back. She was “tired of laying over,” she said, and “getting licked without any input.”
You can't make this stuff up.
No quarter asked, no quarter given. I used to practice domestic relations law, but I wasn't very good at it. I always felt that, because of the emotional trauma surrounding divorce, it was incumbent upon me to remain objective and above the fray. I found out two things. First, divorce clients don't like that; they want someone who's going to extract the last pound of flesh and ounce of blood from their soon-to-be ex-spouse. Second, there are plenty of lawyers willing to do that, and even to goad their clients on in that sentiment.
That's not limited to domestic practice, though, as evidenced by David Justin Lynch & Associates, a California firm which advertises itself as "attorneys who kick butt!" The only thing missing from the firm's web site is the smell of napalm and a sound track of Ride of the Valkyries:
Unlike other attorneys who groove on friendship and politics when dealing with the other side, we’re for you, all the way. For us, the other side is not merely an opponent---they’re the enemy!
For us, litigation is war. We’ve given the term “scorched earth litigation” new meaning with unusual, but effective, actions and tactics—sometimes unpleasant, but all within the law. Our letters feature down-to-earth street language to get our point across. We carpet bomb the other side with discovery, and our deposition questions are like hellfire missiles. Opposing lawyers hate us—but our clients love us, and that’s what counts.
Emphasis in original, as if you had to ask.
Well, Mr. Lynch, you probably make more money in a week than I do in a month, but that doesn't make you any less of an asshole. The reason they call this a profession is because we're supposed to be professionals.
The law in these parts. The Anthony Sowell case here in Cleveland keeps chugging along. For those cavebound for the past six months, Sowell stands accused of luring eleven women to his Cleveland abode and murdering and raping them. The case has been covered in lavish detail by the local fishwrap, prompting Sowell's attorneys to move last month for a change of venue. The trial court denied that, concluding that if Timothy McVeigh could be tried in Oklahoma City, Anthony Sowell could be tried in Cleveland, putting the defense attorneys in the unenviable position of figuring out how to delicately remind the judge that McVeigh's case had been moved to Denver.
Money's always a problem in death penalty cases here in Cleveland. Last year, the administrative judge decided to cap the fees of mitigation experts at $3,000, a sum so penurious that it's become more difficult to find one willing to work on a case. (How this will play out when these cases hit habeas review in the 6th Circuit five or so years from now is anyone's guess.) The judge in Sowell's case has been more generous, recently allocating $15,000 for a psychologist. To press this issue, a few weeks back Sowell's lawyers filed a "Motion to Have Defense Counsel and Experts Paid in Compliance with ABA Guidelines Section 9.1 and the Federal Constitution."
That's a bit of a stretch; as I pointed out then, back in December the Supreme Court pretty much trashed the idea that the ABA Guidelines represent the minimum standards for effective representation of death penalty defendants, holding that the Guidelines were... well, guidelines. The State in its response to Sowell's motion went well beyond that, though, arguing
In that the Court of Common Pleas derives its jurisdiction and is bound to follow the law of the Ohio Revised Code, State of Ohio Constitution and Rules of Ohio Criminal Procedure, the ABA guidelines as well as the Federal Constitution would not be applicable to this case.
Yes, that is my emphasis. And no, you can't make up stuff like that, either.
Greg Taylor was convicted in 1993 of murdering Jacquetta Thomas in Raleigh, North Carolina. After spending 17 years in prison, he was freed last week when the North Carolina Innocence Inquiry Commission determined that he had been wrongfully convicted.
Of the various exceptions to the 4th Amendment's warrant requirement, there's probably none more frequently used, and certainly none more frequently litigated, than the "stop and frisk" doctrine created 42 years ago in Terry v. Ohio. The 8th District's decision last week in State v. White highlights three fundamental mistakes that courts make in those cases.
The court tackles the question of when informants have to be disclosed, what the appropriate sanctions are for failure to provide discovery, and tops off the week by turning back the 4th Amendment clock.
Reaction to the decision in Citizens United allowing corporate campaign financing still dominates news about the US Supreme Court; a recent poll showed 80% of the public opposed to the decision. Interestingly, the opposition crosses party lines (85% of Democrats and 76% of Republicans disapprove), perhaps complicating Republican congressional leaders' vow to oppose any legislation limiting its impact.
The Court gets back into action this week with oral argument in six cases. The most notable one is Holder v. Humanitarian Law Project, which tests the constitutionality of the law prohibiting "material support" to designated terrorist groups, but the one closest to our hearts is Astrue v. Ratliff, which poses the question, When attorney fees are awarded in a court case, do they belong to the attorney or the client? Ratliff had successfully represented a client in her claim for Social Security benefits, and the district court, pursuant to statute, awarded her $2,112.60 in attorney fees. The government claimed her client owed it money for something, and took the fees. The 8th Circuit ruled in Ratliff's favor, but there's a split in the Circuits that the Court will have to sort out.
Down in Columbus, the court was too busy setting execution dates or staying them to do much of anything else, even smacking down some miscreant attorney or other, although it did order one released from jail after he'd served five days. Moral: if the Supreme Court tells you to appear, you'd better appear.
On to the courts of appeals...
Ghostbusters. So, this is how my mind works. The other evening I'm watching, for no particularly good reason, an old episode of Two and a Half Men, the CBS comedy starring Charlie Sheen. In this episode, Charlie's mother, a real estate agent, bemoans the troubles she's having selling a Malibu beachhouse whose owner just committed suicide. The next morning, I'm putting together my Friday Roundup post, which you're reading now, and come across an article in Legal Blogwatch telling me that the likelihood of watching new episodes of Two and a Half Men might be affected by the three-year stint in the pokey that Sheen's looking at for a recent incident in which he threatened his wife with a knife. Scrolling down further, Blogwatch tips me off to an article in The Consumerist, which details a complaint by a Massachusetts woman who discovered that the previous owner of the house she just bought had committed suicide. The Consumerist is shocked to find that Massachusetts law does not reqire that this information be disclosed to a buyer.
So what do I do? I check out Ohio law. Oh, it's not extensive research; I simply did a Lexis search on "dislos! w/s suicide." The only case that comes up is this 1993 Butler County Common Pleas Court case. A suicide wasn't involved in that case -- the buyer was complaining that she hadn't been told of various crimes that occurred in the house and the neighborhood, including the rape of the previous owner's daughter a few months before the property closed. Turns out there's a whole theory of law on the subject: "stigmatized property." A number of states have (or had, by that time) passed laws stating that home-sellers are not liable for failure to disclose stigmatizing events, such as "homicide, suicide, felony, or death by AIDS." Ohio doesn't have one, and the judge decided that a 1984 1st District decision had legitimized the cause of action. (To show you how some judge's minds work, the 1984 case actually did involve a suicide, but the court denied relief.)
And no, I don't know whether Charlie's mother ever sold the house, or if she did, whether she told the buyers that the owner had committed suicide. Probably not; California is one of the states with a statute that specifically exempts such disclosures.
The bill comes due. This is also how my mind works. A few months back I regaled you with the story of Shawn, a client charged with leading the police on a 100 mph chase along the Shoreway here. I'd taken a close look at the cops' dashboard cam video, which showed a few seconds of the driver leaping from the car. I noticed that the driver was wearing shorts, then went out to the Euclid police station and learned from the booking card that my client had been wearing blue jeans the night he was arrested. I presented this to the prosecutor, who dropped the fleeing charge. He still wanted a plea to the other charges, receiving stolen property and attempted theft of a car, but I had hopes of working out something better the morning of trial. It became academic when Shawn didn't show up.
There have been other developments since then. Turns out Shawn had a reason for not showing up at trial: he was in jail on another matter. Hey, I didn't say it was a good reason. Still, I managed to convince (a) the prosecutor to give me a better deal, dropping the 4th degree felony and leaving only a 5th degree, (b) the judge to let Shawn out of jail, and (c) the judge to give Shawn probation if he pled. Which Shawn did.
Normally, I just send a client a letter reminding him of the sentencing date, but in this case I made a special point to call Shawn the day before. His mother answered, and mumbled something about Shawn's grandmother's funeral coming up. I told her in no uncertain terms that Shawn had to be at his sentencing the next day. He wasn't. Two weeks ago, the mother called me up, told me that she'd taken him to the funeral anyway, and wondered what they should do. I told her it was absolutely essential that he turn himself in; if he got stopped for a traffic violation, the cops would discover the warrant, and the judge would be much less impressed with the situation. We set up plans for him to be in the court the next morning.
He didn't show.
The other day I got a call from the mother. Shawn had been a passenger in a car that had been stopped for a traffic violation and... Well, you can pretty much fill in the rest. The mother asked me, "What do you think will happen?"
I said, "You haven't listened to anything I've told you so far, why would you start now?"
"Can you set aside your own personal feelings about what the law should be, and apply the law as I give it to you?" the judge will ask.
"Yes," the jurors will say. Sometimes with their fingers crossed...
Of all the mistakes a lawyer can make, representing two criminal defendants in the same case is one of the biggest. Of all the mistakes a trial judge can make, getting too involved in plea negotiations is one of the biggest. Both were on display in last week's 8th District decision in State v. Kelly.
This week's decisions from the 8th District give lessons on post-release control, 404(B) evidence, and what not to do in plea discussions, and feature a cast of characters -- Apache Hightower, Ebay Fuller, and Taiwan Wiggins -- that would feel at home in an Elmore Leonard novel.
SCOTUS comes back into session next week, and with the dismissal of Briscoe v. Virginia, the only big criminal cases remaining on the Court's docket are the two on life without parole for juveniles, discussed here, and discrepancies in the Miranda warning, discussed here. The gang down in Columbus wasn't very prolific this past week, either. The major news was the acceptance of State v. Hodge, discussed last week, which presents the issue of how Oregon v. Ice impacts State v. Foster's determination that judicial fact-finding for imposing consecutive sentences is unconstitutional. The interesting tidbit on Hodge is that the decision to accept it was only 4-3, with an unlikely alignment of Justices Pfeifer, Lundberg Stratton, and Cupp dissenting.
But while some cases come, some go. In the latter category is State v. Rardon, which presented an interesting fact situation: police responded to a disturbance call, saw Rardon throw something in the grass, and retrieved a flare gun. He was charged with possession of a deadly ordnance and tampering with evidence, the latter from his trying to discard the item. The trial court found him not guilty on the first -- a flare gun is specifically defined in the Revised Code as a "safety device" -- but guilty of the latter. The case thus presented the intriguing question of whether a defendant can be convicted of tampering with "evidence" that actually isn't evidence of anything. Alas, we'll never know; last week Rardon got kicked out becuase of a missed filing deadline.
On to the court of appeals...
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