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What's up in the 8th

Criminal defendants enjoy the best week of the new year, with three reversals.  The court dishes out a bevy of civil decisions, too, the moral of which is that in today's economy, it's best to do whatever you can to hold onto your job.

A few weeks back I discussed State v. Thomas, the 8th District's decision in which it tossed out a search, finding that while the cops had a reasonable basis for the stop, they didn't have one to frisk the defendant.  One of the bailiffs over at court told me that he'd shown a copy of the decision to an officer, who read it and said, "Then I must be violating people's rights every day."  Well, duh.  Further proof that the Cleveland police have no more understanding of basic 4th Amendment concepts than they do of the Rule of Perpetuities is provided this week by State v. GastonWhile patrolling one of the city's innumerable "high drug areas," the police see Gaston and another male standing on a corner.  Gaston and the male see the police too, and "hurriedly walk" the four or five steps into a nearby store.  The police follow Gaston into the store, ask him to exit, and then pat him down for weapons.  It's questionable whether this search would be legal if performed by the Basij in Iran; it's certainly not legal here. 

Lang Dunbar's oddyssey through the legal system comes to an end.  Back in 2007, he'd been charged with three counts of abduction and one of domestic violence.  The State's case was so weak that it agreed to let him plead to one count of the former, with an agreement that he'd get probation.  The court gave him two years instead, for an alleged violation of a no-contact order, but the 8th reversed that for failure of the trial judge to adequately inform Dunbar that he might be sent to prison.  The case came back, was tried, he was convicted, and this time the judge gave him five years.  The judge won't get a third chance; last week, in State v. Dunbar, the court finds the evidence insufficient, vacates the conviction, and discharges him. 

Bella Ben finds himself equally fortunate.  When the police raided Brian Jarabek's apartment, they found Jarabek and Ben on the couch smoking marijuana while Jarabek's two-year-old daughter sat on the floor watching "Scarface" on TV.  They also found 473 pills of Ecastasy and 188 grams of cocaine in various places in the house, as well as $1,220 in Ben's pocket.   

Ben, it turns out, was apparently the Forrest Gump of the drug world.  Six years earlier, he'd been present during a raid on an apartment where police recovered over 300 Ecstasy pills; a year later, the Lakewood police department executed a warrant where Ben, 67 Ecstasy pills, and large amounts of marijuana were found.  The State introduced all this as "other acts" evidence under EvidR 404(B), trying to show an "absence of mistake" on Ben's part.  In an excellent opinion in State v. Ben,  the court discusses the standards used by Federal courts in resolving this question, and decides that the evidence wasn't probative.  The prejudicial effect was easy to glean:  the judge gave a "curative" instruction that the evidence wasn't admissible to show defendant's guilt, but only to prove absence of mistake, and when the befuddled jury asked whether it could take the evidence of the two prior occasions into consideration, the court gave the Delphic reply, "Yes, but only as specified in the 'other acts' instruction."

In the civil arena, we learn a bunch of stuff about suing your landlord for personal injuries and whether that's a compulsory counterclaim if he files an eviction action against you, in Kerr v. Lakewood Shore Towers.  If all he files is an action to throw you out, no it isn't; if he includes a claim for money (back rent, damages to the apartment), yes it is.  But if it arises out of an accident which didn't occur in a common area, it doesn't arise from his obligations under the Landlord-Tenant act, so it isn't compulsory.  Speaking of landlords and tenants, in Lee v. Wallace we learn that just because you're hired as a live-in caregiver doesn't mean you're a tenant and it takes an eviction action to get you out of there.  Our education continues apace in Midland Funding v. Paras, where we find out that even where a credit card agreement contains a clause stating that it is to be interpreted according to Virginia law, if the suit's brought here, the Ohio statute of limitations (15 years), not Virignia's (5 years), will be applied.  Finally, several unemployment compensation cases provide career guidance:  don't yell at your boss, if you're just surfing the web you may be okay, but not if you're surfing for porn

As if we need the court to remind us that we're not supposed to do that.  Right?

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