It’s happened to just about every defense attorney.  You work your butt off getting your client the best possible deal, he grudgingly agrees to it and pleads out, but a week or two before the sentencing he gets second thoughts and wants to withdraw the plea.  He even files a motion to do that.  What’s your obligation as his attorney?

Two weeks ago the 8th District decided in State v. Drake that there was no problem with the attorney urging the court to deny his own client’s motion and proceed to sentencing.

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On New Year’s Eve in 2007, Kevin McDermott, a 52-year-old lawyer, went jogging in his Shaker Heights neighborhood.  It almost cost him his life; he was set upon by six teenagers from adjacent Cleveland, who shattered his leg with a pipe and beat and stabbed him.  The case had racial overtones:  McDermott was white, the teenagers black.  The appeals from the convictions of the six finally come to an end, posing an interesting sentencing question.  The planets perfectly align, resulting in the State winning two search cases.  All that and more in this week’s study of the 8th District’s decisions.

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The only decision out of SCOTUS this week was one on student loans and bankruptcy, although it should at least double that output this week:  it’s announced that decisions will be handed down on both Tuesday and Wednesday.  Their Ohio counterparts were much busier, handing down four major decisions.

The big one was Kaminski v. Wire Metal Products, concerning the constitutionality of RC 2745.01, which defines employer intentional torts so as to require a deliberate intent to injure on the part of the employer.  Third time’s the charm:  although the court had rejected this language twice earlier, in 1991 and 1999, this time it approves.  The court insists that there’s enough dissimilarity between the present statute and the previous ones that overruling the previous decisions isn’t necessary, thus keeping intact its record of not have overruled a decision since it imposed the ridiculous test for overruling president five years ago in Westfield v. Galatis (discussed here).  Chalking the decision up to the expectation that an all-Republican Supreme Court will issue pro-business decisions does the opinion a disservice, but the gentle reader can look elsewhere for more extensive analysis; employer intentional tort jurisprudence was rather muddled before, and at least this has the virtue of achieving clarity.  It does so at the expense of creating a situtation where an employer could be punished for a criminal act in circumstances where the act would not classify as an intentional tort. 

In Elevators Mut. Ins. Co. v. Flaherty’s, a bar burned down.  The insurance company claimed that the fire had been intentionally set, an argument enhanced by the fact that the owner had pled no contest to a charge of arson.  It can still make the argument, but it won’t be aided by the plea; the court holds that pleas of no contest, and the convictions resulting from them, cannot be used in civil disputes over insurance coverage for loss or damage resulting from the criminal acts underlying the convictions. 

Hall v. Akron Gen. Med. Ctr. involves a bar exam question of the application of the doctrine of res ipsa loquitur.  The plaintiff’s decedent had died during a procedure to insert a dialysis catheter; she presented two experts who said the doctor was negligent, the doctor presented two experts who said this was one of the risks of the procedure.  The court holds that where there are two probable causes of injury, one of which is not attributable to the negligence of the defendant, res ipsa doesn’t apply.

The only criminal case of consequence was State v. Pepka, in which the State sought to amend an indictment for child endangering to include the element of serious physical harm, which elevates it from a first degree misdemeanor to a third degree felony.  The opinion makes a convincing case that Pepka had more than adequate notice that the State was arguing serious physical harm, and wasn’t prejudiced by the amendment.  There’s another issue here.  Following the decision in State v. Colon that the indictment must include the mens rea requirements for various crimes, some courts have held that the indictment can’t be amended to include that, because the defendant is entitled to grand jury indictment, and if an element isn’t included, there’s no indication that the grand jury ever considered it.  In fact, there’s a case out of the 2nd District pending before the Supreme Court on that very issue.  Pepka doesn’t resolve this, since the indictment here specified that it was for a third degree felony.  But the argument isn’t looking good.

Finally, under the heading of no good deed goes unpunished we have Disciplinary Counsel v. Mamich.  A father, apparently a friend of Mamich’s, came to him claiming that he’d obtained a credit card, put his daughter on the account, and she now was being sued for debts that he’d run up on it.  He persuaded Mamich to represent the daughter, telling him that she was traveling and couldn’t be reached.  Disciplinary action was taken against Mamich for representing the daughter without her consent, at which point Mamich learned that the father had applied for and obtained the credit card solely in his daughter’s name without her knowledge.  For his troubles — he never received a dime on the case — Mamich gets a six-month stayed suspension. 

On to the courts of appeals…

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Supreme Court news.  There are several cases still pending for decision by the Supremes — the two cases involving life imprisonment without parole for juveniles probably being the most noteworthy — but the Court also added another case for ruling next year.  On Monday the Court accepted certiorari in Connick v. Thompson, a civil case involving failure to disclose exculpatory evidence.  A civil case?  Yep.  Thompson was charged with murder, and the victim of a robbery which occurred shortly after the murder fingered Thompson as the perpetrator of that crime as well.  Thompson was tried and convicted of the robbery, and then tried, convicted, and sentenced to death for the murder.  At the latter trial, Thompson didn’t testify, largely because prosecutors would have impeached him with the robbery conviction.  During the sentencing phase, the robbery victim testified, and the prosecutor argued that the robbery victim could have just as easily wound up as a second murder victim, and that a death sentence was necessary to punish Thompson.

One problem.  In the scuffle during the robbery, the robber had gotten some of his blood on the victim’s pants.  The blood was tested, and came back as Type B.  The prosecutor later confessed that he had intentionally withheld the test from the defense, which became a big deal when it was learned that Thompson’s blood type was O, and that he couldn’t have committed the robbery.  That conviction was vacated, along with his death sentence in the murder case, and he sued the prosecutor’s office under 42 USC §1983, arguing that the prosecutor’s office’s failure to properly train their attorneys in their Brady obligations violated his civil rights.  A jury agreed, and awarded Thompson $14 million.  Yes, that’s a dollar sign followed by 14 and six zeroes. 

The question before the Supreme Court is whether a single Brady violation can serve as the basis of a finding that the violation was caused by an “official policy” or failure, through “deliberate indifference,” in creating a policy to prevent such problems.  Still, the result here provides one possible remedy for Brady violations that I hadn’t previously contemplated.  And I bet I’m not the only one.

Sentencing stuff.  I’ve often bewailed the disparities in sentencing that have resulted from the Ohio Supreme Court’s decision in State v. Foster, which essentially gave trial judges unfettered discretion in fashioning sentences.  Turns out that the Supreme Court’s decision in Booker, which changed the Federal Sentencing Guidelines from mandatory to advisory, may have had a similar effect.  Doug Berman’s Sentencing Law & Policy is the go-to place for news, commentary, and analysis of Federal sentencing decisions, and yesterday morning his first post featured a story of an 845-year sentence handed down by a New York district court for financial fraud.  The second post was on an Iraq War veteran who claimed that PTSD caused him to download child pornography.  He got two years in prison.

Downsize, don’t Supersize.  Volokh Conspiracy points us to this New York Times article:

Buried deep in the health care legislation that President Obama signed on Tuesday is a new requirement that will affect any American who walks into a McDonald’s, Starbucks or Burger King. Every big restaurant chain in the nation will now be required to put calorie information on their menus and drive-through signs.

Just wondering.  My wife mentioned the other day that she and her fellow employees are scheduled to undergo a “diversity training” workshop at the company next week, and so it was with interest that I read this article I came across while checking out Overlawyered.  Despite massive expenditures of money on such training programs over the past 30 years, there’s been little attempt to evaluate their effectiveness.  Until now:  several recent studies have shown that there’s little evidence that diversity training changes attitudes, behavior, business practices in hiring and promotions, or much of anything.

Which got me to thinking.  It’s been a while now since the Ohio Supreme Court mandated that lawyers have to take 2½ hours of CLE credits every two years in ethics, professionalism, and substance abuse.  It wouldn’t be too difficult to study the empirical effects of that mandate:  have there been fewer disciplinary cases?  More civility among lawyers?  Fewer instances of substance abuse?  I’d be interested in knowing the results, but I kind of think there are some people who wouldn’t.

That must have been some fall.  Also courtesy of Overlawyered:  this story about a lawsuit filed in Illinois claiming that the plaintiff’s 77-year-old husband died as “a direct and proximate result” of a fall due to the defendant’s negligence in creating an “unnatural accumulation of ice” around the shopping cart corral.  One might anticipate that Exhibit “A” for the defense at trial will be the obituary of the husband, which indicated that he fought a “courageous battle with cancer” before succumbing at his home.

Last year, in District Attorney’s Office v. Osborne, the US Supreme Court confronted the question of whether the Due Process Clause required Alaska to provide DNA testing to an inmate claiming actual innocence.  Despite the somewhat tenuous nature of Alaska’s case — it had fought Osborne’s requests for DNA testing for a decade, and at oral argument before the 9th Circuit, when pressed for their reasons for opposition, told the judges that they were not “willing or able” to answer that question “at this time” — the Court by a 5-4 vote rejected Osborne’s argument, holding that it was up to the individual states to provide such a remedy if they chose.

The State of Ohio does provide such a remedy, and has since 2003.  Indeed, last week Ohio took another big step in the direction of allowing DNA evidence to provide an answer to lingering questions of guilt or innocence:  SB 77, which extends the right to DNA testing to parolees and those on the sex offender registry, passed the Ohio House by an 85-7 vote.  It goes back to the Senate, where it will very probably be passed this week, and then on to the governor for his anticipated signature.

Interestingly, while the provisions concerning DNA testing have garnered most of the headlines, the other provisions of the bill will probably have a far more pronounced effect on criminal law in this state.

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When the judge takes the time to inform your client of all his rights, just like he was making a plea, it’s a pretty good hint that she thinks your client should make the plea.  While she was doing it, I couldn’t help wondering if she was right. (keep reading…)

It seems that one of the functions of the Cleveland Police Department any more is testing my literary skills in constructing metaphors describing their abysmal lack of understanding as to the most rudimentary tenets of the 4th Amendment.  This week provides another workout. (keep reading…)

Overheard in Phoenix, native resident to tourist:  “Do you have cactus in Michigan?”  Yeah, they used to, but the palm trees crowded them out.

SCOTUS decided to honor my vacation by not handing down any decisions; the talk down by the Potomac centered around the Court’s nifty new web site, and the possibility of Justice Stevens’ retirement.  On April 20, on the day the Court hears oral argument in a case involving the power of Federal judges to order restitution, Stevens will turn 90, the second-oldest judge to ever serve on the Court.  (Oliver Wendell Holmes retired when he was 90 years and 10 months old.)

The Ohio Supreme Court wasn’t as forebearing.  The Adam Walsh Act, Ohio’s latest sex offender law, requires notification to the public about a sex offender’s registration and address, but permits a court to suspend the notification requirement if it determines that notification wouldn’t have been required under former law.  In State v. McConville, the State argued that this only applied to offenders classified under former law, but the court found that the clear wording of the statute meant that it applied to anyone classified under the new law as well.

State v. Joseph involved a seemingly simple issue, but had an interesting subtext.  The judge made no mention of court costs at Joseph’s sentencing, but imposed them in the journal entry.  The court has previously held that costs may be waived for an indigent defendant, but that a defendant forfeits the right to raise the argument if he doesn’t object at sentencing.  Here, of course, Joseph had no opportunity to object, and the court agrees — somewhat.  Joseph had argued that the failure to properly impose court costs rendered the judgment void, analogizing it to the failure to properly impose post-release controls, but the court rejects that argument, holding that a remand is necessary only to allow Joseph to argue that court costs should be waived.  This prompts an opinion from Justice Lanzinger concurring only in the judgment, criticizing once again “this court’s misbegotten line of cases” regarding the distinction between void and voidable sentences.  Lanzinger has argued over the years that all sentencing errors, including those involving PRC, should be treated as voidable, correctable only on direct appeal.  She’s managed to persuade Justice Lundberg Stratton, and this time picks up yet another vote for that view.  Alas, it’s the vote of visiting Judge Dickinson, so change in the court’s jurisprudence in this area doesn’t seem to be in the offing.

We’ve got two weeks of appellate opinions to wade through, so let’s get to that… (keep reading…)

Bread and Circuses.   In my very first trial, sitting second chair in a personal injury case, I learned a valuable lesson.  During our client’s cross-examination, it came out that he had a prior injury he’d neglected to tell us about.  I shot a quick, “what-do-we-do-now” look at lead counsel.  Rookie mistake:  never react to testimony, because the jury will pick up on it, he told me later.  Ever since, I’ve made sure to impart that advice to my clients before trial.

So you can imagine my thoughts when one of the jurors in the Yazeed Essa case, in their press conference following their verdict finding him guilty of poisoning his wife, mentioned that one of the deciding factors was Essa’s lack of reaction to various testimony at trial. 

To be sure, there’s a difference to not reacting to a some particular bit of testimony, and not reacting when a picture of your dead wife and the two kids you haven’t seen in five years is flashed on a screen.  And let’s agree that the jury went about its task quite responsibly, deliberating for four days before reaching a verdict that many courthouse observers felt would have come much quicker. 

Still, the idea of a “jury press conference” strikes me as a bit unseemly, especially in the setting of a courtroom in which the victim’s family is gathered, with the family congratulating and thanking the jurors, and the jurors expressing sympathy for the family’s pain.  Besides, you never know what somebody’s going to say with the cameras rolling.  Imagine what might have ensued if one of the jurors had opined, “Maybe if he’d told us his side of the story, things would have been different” or “Hey, as far as I was concerned, this thing was over after his brother testified against him on the third day of trial.”  The spectacle served mainly to vouchsafe Warhol’s prediction of everbody’s being famous for fifteen minutes, and I’d hope that a bit more discretion on this sort of thing will be exercised in the future.

Perry Mason in the jury box.  Speaking of juries, one of the recent developments in trial practice which has displeased defense attorneys is allowing jurors to ask questions.  The trial judge in the 5th District’s decision last week in State v. Nicholson might be having some second thoughts about it, too.

Nicholson, an inmate at Richland Correctional, was charged with one count of assaulting a corrections officer.  The incident began with a confrontation between Nicholson and his case manager, who wrote up Nicholson for “disrespecting a staff member,” the particulars of which were that Nicholson called the case manager “a lazy mother-fucker.”  Apparently, understatement is a habit among the correctional staff at Richland; the sergeant conducting the hearing on the violation testified that when he imposed a 30-day commissary restriction on Nicholson, the latter became “pretty belligerent,” as evidenced by Nicholson shouting “fuck you, fuck both of you,” and “I don’t give a shit about this commissary restriction.”  Things spiraled downward from there, with Nicholson eventually punching the sergeant.

At trial, the jury asked five questions of the sergeant, and then five more of the next witness, another corrections officer.  The appellate court noted that “some of the questions appeared to slant toward the defense,” such as whether the sergeant had used profanity toward Nicholson, or whether the officers were allowed to sit together while filling out their incident reports.

After that, the gloves came off:  eight questions for the next witness and thirteen for the one after that, prompting an admonition from the trial judge:

I will just say one other thing to you, folks, when I give you the opportunity to ask questions, I don’t expect you to be an attorney who does a lengthy examination of witnesses. You can ask one question, but not a whole series of questions. So if you have one question, fine, but don’t give me three or four questions.

Hint taken.  No questions for the next witness, one for the next, and none for the defendant when he took the stand.

Nicholson argued on appeal that “the trial court committed ’structural error’ by admonishing the jury for posing multiple questions to the witnesses.”  Since this was reviewed under a plain error standard — there’d been no objection at trial — it met the fate that you’ve probably guessed.  Sadly, the jury did not give a press conference afterwards, or we might have learned which of them planned on going to law school.

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As I mentioned earlier, no Briefcase next week.  I’m off to Phoenix to soak up some sun, do some hiking, watch a ballgame or two.   Or more; seems that Arizona’s Supreme Court just passed a rule granting reciprocity to lawyers, meaning you can practice there without having to pass the Arizona bar exam.  (Although you do have a take a test on Arizona law.)  Food for thought.

By the way, the picture at right isn’t of Arizona, it’s Death Valley.  As you can see, I stood in the middle of the road to take the picture, and had to depend on my wife to warn me of approaching traffic from the rear.   That’s true love.

See you in ten days.

As the court of last resort on state law questions, the Ohio Supreme Court is asked to hear thousands of cases a year; it agrees to hear only a few hundred, and issues opinions in even fewer.  With that kind of workload, the court tries to get the maximum bang for the buck; opinions should resolve broad issues of law in a clearly settled fashion.  Last week the court accomplished just that in State v. Speer, a case pitting the right of a disabled person to sit on a jury against the right of a defendant to a fair trial. (keep reading…)