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April 2010 Archives

Friday Roundup

Wasted youth.  As Jim Croce might have put it, you don't tug on Superman's cape, you don't spit into the wind, you don't pull the mask off that old Lone Ranger, and you don't screw with a Federal judge.  Or his clerks.  With a hat-tip to Legal Blogwatch, we find that 19-year-old Texas college freshman Kelsey Golston learned this the hard way.  When called for jury duty, she failed to appear, told a clerk who called her that she'd had a flat tire, and hung up on the clerk when she called back later and told Golson that the judge wanted her to appear the next day to explain herself.

There's an old joke about the difference between God and a U.S. District Judge being that God doesn't think he's a U.S. District Judge, and those of us who've had the pleasure of appearing before the latter can guess what happened next:

Kelsey Gloston stood in ankle and wrist restraints in court Tuesday afternoon wearing flip flops, a tight white T-shirt, short-shorts and sporting green streaks in her hair.

But while Kelsey might have skipped over the stuff in social studies about the right to jury trial, her father instinctively knew what a true-blooded American should do in such a situation:  he announced that he planned to sue because Kelsey's "ankles were bleeding and bruised from the restraints," and gave a less-than-ringing endorsement of his daughter and his own parenting skills:  "She's 19, she's ignorant, she's a kid. They don't take anything seriously."

But all's well that ends well.  Kelsey appeared in court the next day and read from a written apology, the judge announced he wouldn't hold her in contempt, and dad said he'd reconsidered and wouldn't sue.  He did comment earlier that his daughter shouldn't be treated "like she murdered 25 people along the freeway," failing to understand that, in the pecking order of Federal offenses, murdering 25 people on the highway probably ranks below dissing a district judge.

It's not that "Commando" shouldn't have been seen by anyone under 18.  It shouldn't have been seen by anyone.  The Supreme Court finished oral argument for the term this week, but the big news was the Court's acceptance of certiorari in Schwarzenegger v. Entertainment Merchants Association.  California, like some other states, bans the sale of violent video games to minors; the law defines a violent game as one "in which the range of options available to a player includes killing, maiming, dismembering or sexually assaulting an image of a human being" in a way that is "patently offensive," appeals to minors' "deviant or morbid interests" and lacks "serious literary, artistic, political or scientific value."  The 9th Circuit tossed the law last year. 

The Court's decision to accept review surprised many.  State laws on this subject have been uniformly struck down, so there's no controversy between the circuits, which is usually a reason for the Supreme Court to step in.  And given the reversal of the animal cruelty video case just the week before, it doesn't seem likely that the Court would overrule the 9th's decision.  Some have suggested otherwise:  that the Court might be willing to take another look at restrictions which are limited to minors.

In any event, probably the best line on the whole thing was the observation of Ann Althouse:  "who could have imagined that one day the Supreme Court would take a case called 'Swcharzenegger,' and Schwarzenegger would be arguing for preventing young people from viewing graphic depictions of violence?"

They cut this scene from "Smokey and the Bandit."  Crime and Federalism poses the query of whether this is the "greatest tasering video of all time."  Certainly in the top ten, in my view.

[youtube]http://www.youtube.com/watch?v=x0AQ3jvaXhI[/youtube]

Continue reading "Friday Roundup" »

Who we are

I go to Phoenix every spring for five or six days.  I started doing that a few years back, when I spent an entire winter in Cleveland and resolved that if I had to crawl over broken glass to go to someplace warm, I was never going to do that again.  Phoenix is a nice place that time of year:  you get up in the morning and go out in shirtsleeves to 70-some degrees, a sky that couldn't be bluer,you take in a spring training ballgame, you find a good place to eat.

It's never occurred to me to take any proof of my citizenship along with me.  But if my name were Jose Hernandez, I'd be giving it some thought right now.

Continue reading "Who we are" »

Don't Bogart that joint

There'll be a referendum on the ballot in California this fall on whether to legalize marijuana.  If it passes -- and polls show a majority favoring it -- my client Randolph is a sure bet to head out there.  By bus, not plane; despite being 24 years old, Randy doesn't have a job.  (Not surprising in the true stoner culture.  I always like it when one of them says something like, "Dude, George Washington smoked hemp, ya know?"  Well, yes, he did, but he wasn't living in his parents' basement at 34, either.)

Continue reading "Don't Bogart that joint" »

What's up in the 8th

Ever wonder why cops treat the 4th Amendment with borderline disdain?  Because they see lawyers and judges spending hours and days mulling over decisions which the officers have to make in a split second.

Continue reading "What's up in the 8th" »

Case Update

The only significant decision out of SCOTUS this past week (significant to me, anyway) was US v. Stevens, which struck down on First Amendment grounds the federal statute banning creation or sale of depictions of animal cruelty.  The opinion was not unexpected; the government was left to argue that animal cruelty videos should occupy a place exempt from any free speech protection, like child pornography.  When Bill Clinton had signed the law, he directed that it be enforced only against depictions of "wanton cruelty to animals designed to appeal to a prurient interest in sex."  That didn't happen, of course; Robert Stevens, the defendant in this case and the only person ever prosecuted under the law, sold videos of pit bull fights.  Perhaps the most interesting part of the opinion is its response to the argument that the government would interpret the statute narrowly:  "We would not uphold an unconstitional statute merely because the government promised to use it responsibly."  This may be a foreshadowing of the decision in the trio of "honest services" cases still awaiting decision (discussed here); there too the government seeks to preserve an exceedingly broad statute by saying that it can be trusted to prosecute it responsibly. 

Down in Columbus, the Ohio Supreme Court resumed oral arguments, as I mentioned last week.  Somewhat poignant was the empty seat in the middle, vacated by Chief Justice Tom Moyer's sudden death two weeks ago.  Appointee Chief Justice Eric Brown will be assuming the seat a week from today.  If four votes can be mustered one way or the other in any of the cases heard with the seat vacant, they'll be decided; if the remaining six justices tie, Brown will review the case and cast the deciding vote, although he can also order re-argument.

Nothing else of significance came out of Columbus, so let's take a look at the courts of appeals...

Continue reading "Case Update" »

Friday Roundup

Naming names.  My post on Wednesday about vindictive sentencing drew some response, not so much about the principles regarding that topic, but about the particular judge's comments about his displeasure at the court of appeals' reversal of an earlier guilty plea in the case.  The day before the post appeared, the Supreme Court had oral argument in a disciplinary case involving the same judge.  (Background in this post.) 

Arguments in disciplinary cases resemble sentencings in criminal cases:  the alleged miscreant's lawyer will tell the judge that his client has been duly mortified by the whole experience, that the whole thing resulted from an error of judgment, that he has learned his lesson, and that he will not ever darken a courtroom again.

Not this time, baby.  The judge's lawyer presented the most confrontational argument in this context I've ever seen.  And not without reason:  the judge was presented with evidence that a defendant might have been kidnapped a witness to prevent her from appearing.  In fact, the criticism was directed more at how the judge handled the situation than the fact that he responded to it at all.

But there were several references, in both the judge's lawyer's argument and the comments of the judges, that this was an "isolated" incident.  That prompted several readers to comment that if appellate opinions would name the lower court judge involved, a determination could be made just how "isolated" certain conduct was.  As it is, had this judge been rebuked by the appellate court for intemperate remarks in the past, the only way disciplinary counsel would be able to determine that would be to pull up all of the appellate decisions involving that judge (who's been on the bench for 19 years) and read them. 

But it was not always thus.  Ann Kilbane, a top lawyer at one of Cleveland's premier personal injury firms, was elected to the 8th District Court of Appeals in 1998.   She had promised to hold trial judges accountable, and set upon doing so by providing the name of the trial judge in the first sentence of her opinions.  ("This is an appeal from a jury verdict following trial before Judge ....") 

That didn't sit well with some of the more traditional judges.  Eighteen months after Kilbane took the bench, the court adopted Local Rule 22(C), which provides

(C) Form of Opinions. Opinions of this court will not identify or make reference by proper name to the trial judge, magistrates, court officials, administrative personnel or counsel for the parties involved in the proceeding below unless such reference is essential to clarify or explain the role of such person in the course of said proceedings.

Undeterred, Kilbane kept right on doing it.  She was re-elected in 2004, running unopposed.  She died unexpectedly three weeks later. 

In truth, though, Kilbane's practice of naming judges was an anomaly.  I couldn't tell you how many opinions I've read in the four years I've been doing this blog, and it's extremely rare for the trial judge to be mentioned by name.  Even when the 11th District took Portage Municipal Court Judge John Plough to task in one of the most scathing opinions I've ever read (discussed here) it did not once mention his name.

It's hard to see the justification for that, especially in the case of a serial offender like Plough.  Even a large appellate court like the 8th develops some institutional memory, and if they observe the same judge doing the same thing over and over, it's at least arguable that they should call him out on it.  Indeed, the reaction to Kilbane's practice of simply naming the judge at the outset of the opinion probably had more to do with her personality than the practice.  Even former judges I've talked to who were sympathetic to Kilbane acknowledged that she could be openly confrontational.  The hostility that this generated can be seen by reading her opinion and the dissenting opinion by future Supreme Court Justice Terrence O'Donnell in State v. Reniff; it's the judicial equivalent of a gunfight.

This week's lawyer marketing tip.  As Obama intensifies his search for a new Supreme Court justice, he might think about looking west.  This guy, though, is probably waiting for a casting call from Goodfellas II.

[youtube]http://www.youtube.com/watch?v=OS2YOtLLK-4[/youtube]

I don't know what shouts "professionalism" more:  the open shirt or the shades?

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Another look at Bezak?

Beginning in State v. Jordan and capped by State v. Bezak, the Ohio Supreme Court has held that the failure of the trial court to properly impose post-release controls resulted in a void sentence.  The logical implications of that ruling dominated the arguments before the Ohio supreme Court several weeks ago in State v. Fischer, and the continued viability of Bezak is an open question.

Continue reading "Another look at Bezak?" »

Vindictive sentencing

Last week's 8th District decision in State v. Barnes demonstrated two things.  First, sometimes it's better if you don't get what you asked for.  Second, while trial judges can get upset by being reversed by the court of appeals -- and sometimes understandably so -- it's best for the judge not to voice his displeasure at the reversal while the court reporter is typing away.

Continue reading "Vindictive sentencing" »

What's Up in the 8th

When I'm given an appeal, one of my concerns is that I won't find any errors.  This week's body of work from the 8th indicates why that's rarely a problem for lawyers assigned to handle an appeal from a municipal court trial.  It also provides instruction on several burglary issues, and reminds us of the value of watching what you say.

Continue reading "What's Up in the 8th" »

Case Update

SCOTUS goes back into session next week, with decisions to be announced on Tuesday and Wednesday.  Still on the list of undecided cases are the two on life imprisonment without parole for juveniles.  If those come down, I'll have a post on that on Thursday.  If they don't, and something else interesting comes down, I'll do a post on that.  If nothing interesting comes down, I'll do a post on the oral argument, scheduled for Monday, in City of Ontario v. Quon, which presents the question of whether a police officer can be fired for using his department-issued pager for personal messages.  Or I'll do a post on something else.  You can count on it.

The big news from Columbus, of course, is Governor Strickland's appointment of Franklin County Probate Judge Eric Brown to the chief justice position vacated by Tom Moyer's death two weeks ago.  Brown was the Democratic candidate for the position, which is up for election this year.  (Justice Maureen O'Connor is the Republican candidate; Moyer was not eligible to run again because of age.)  This engendered criticism about "politics as usual" from several quarters, as if a system which insists on electing appellate judges isn't political. 

The only decision of note was State ex rel. Toledo Blade v. Henry County Common Pleas, where the trial judge had imposed a gag order precluding the media from reporting on a murder trial for fear that the co-defendant's trial, scheduled to follow, could be adversely impacted by the publicity.  The problem was that the judge decided that the defendant's right to a fair trial had priority over the media's First Amendment rights, and that's not the way it works.  A prior restraint must be based on various findings, and the judge failed to make the record to support it.

On to the courts of appeals, where not much was happening, either...

Continue reading "Case Update" »

Friday Roundup

Overburdened prosecutors.  Friday's my "lazy day" here.  Instead of reading cases, I read other legal blogs to see what's going on, and pull stuff I find interesting.  I started doing that because I figured it would be quicker.  Actually, it's turned out the other way; I spend so much time wandering around the Internet that these posts actually take longer.  But there's some thought-provoking stuff out there, like this article over at the Social Science Research Network (hat-tip to SL&P for the pointer), explaining that case overburdening is not limited to public defenders; in many jurisdictions, prosecutors' caseloads approximate those of PD's.  And, as the article, explains, "Counter-intuitively, when prosecutors shoulder excessive caseloads, it is criminal defendants who are harmed."

Because overburdened prosecutors do not have sufficient time and resources for their cases, they fail to identify less culpable defendants who are deserving of more lenient plea bargains. Prosecutors also lack the time to determine which defendants should be transferred to specialty drug courts where they have a better chance at rehabilitation. Overwhelmed prosecutors commit inadvertent (though still unconstitutional) misconduct by failing to identify and disclose favorable evidence that defendants are legally entitled to receive. And excessive prosecutorial caseloads lead to the conviction of innocent defendants because enormous trial delays encourage defendants to plead guilty in exchange for sentences of time-served and an immediate release from jail.

I'm not sure I buy into it, certainly not completely.  I'm a great believer in preparation being the key to winning a case, and if I've got a choice between a prosecutor who's had a couple of weeks to prepare for trial versus one who's looked at the file the first time that morning, I'm going to take Door B every time.  But it's an angle that I really hadn't considered.

Reason #33 why I don't have a video camera in my helmet when I'm popping wheelies on my motorcycle.

Well, it might have seemed like a good idea at the time to Anthony Graber, who apparently figured that if he drove I-95 in Maryland at excessive speeds, he should record the event for posterity.  Not only did he record his recklessness, but he also recorded a policeman pulling in front of Graber, leaping from his car with gun drawn, and ordering Graber off the bike:

[youtube]http://www.youtube.com/watch?v=BHjjF55M8JQ[/youtube]

Except, as you can see, the officer is in plain clothes, and in an unmarked car, and it's at least five seconds before he identifies himself as a policeman.  If you watched the first few seconds of the video without reading any of the above, you might think it's Graber's posthumous memorialization of a road-rage incident.

Graber apparently also thought it would be a good idea to post the video on YouTube, so everybody else could see how badly the cop had overreacted.  (Let's face it, unless Graber was shooting out car windows while he was doing wheelies, driving recklessly isn't generally regarded as a crime of violence.)  Turns out that was a bad idea; the local prosecuting attorney decided to prosecute Graber for "interception of a wire communication" under Maryland's wiretap law, which makes it a felony, punishable by up to 5 years in prison, to "intercept" with an electronic device -- in this case, the microphone in Graber's helmet cam -- an oral communication in a private conversation.

Presumably, Graber will be represented by an attorney who didn't flatline his last EEG, who will point out to a judge that no one would have a reasonable expectation of privacy in a shouted conversation in the middle of a road.  And presumably, that judge will have an IQ which exceeds room temperature, and will lecture Graber about the perils of driving recklessly, before dismissing the felony charge to save the commonwealth further embarassment.  And presumably, the judge will then retire to his chambers to wrestle with the question of who is the biggest jackass in this scenario:  Graber, the cop, or the prosecutor?

Reason #58 why I don't do divorce work.  Because you run into people like this guy:

[youtube]http://www.youtube.com/watch?v=y1Qk6QPzuIc&feature=player_embedded[/youtube]

But if you want "to be on your way to getting rid of that vermin you call a spouse," now you know where to go.

Continue reading "Friday Roundup" »

Notice and demand and 2925.51

Last summer, in Melendez-Diaz v. Massachusetts (discussed here), the US Supreme Court held that admission of lab reports without the live testimony of the person who performed them violated a defendant's confrontation rights.  The Court did sanction the use of "notice and demand" statutes, which notified the defendant of the report and then required him to demand the testimony of the analyst if he desired.  The Court specifically cited Ohio's statute, RC 2925.51, as one which would pass muster.  Last week, in State v. Moore, the 8th District agreed.

But it says here the 8th got it wrong, at least as it applied to Moore.

Continue reading "Notice and demand and 2925.51" »

What's Up in the 8th

After reading this week's bevy of 8th District cases, I'm rethinking my approach to appellate practice.  Maybe I should set a goal in each appeal of having assignments of error at least reach the double digit level.  Maybe I should push the envelope in the arguments I make.  Then again, that didn't prove terribly effective for the lawyers who tried it.

Continue reading "What's Up in the 8th" »

Case Update

The big news out of DC is, of course, the retirement of Justice John Paul Stevens, the court's most liberal member, at the end of this term.  Everybody already smells blood in the water as President Obama mulls over a replacement pick, and the urging from this quarter is that the matter be resolved through trial by combat:  give, say, potential nominee Elena Kagan and Republican Senate Majority leader Mitch McConnell their choice of weapons, put them in a cage, and see who comes out alive.  My guess is that it would prove more dignified than the last several nomination hearings.

The only decision out of Columbus was Lambert v. Clancy, which comes to the unsurprising conclusion that when an officeholder is sued in his official capacity, the sovereign immunity analysis applies.  But there were also a couple of interesting slip opinions.  Back in February, in State v. Williams, the Ohio Supreme Court held that attempted murder and felonious assault were allied offenses.  I argued that the opinion, while not coming out and expressly saying so, also held that a defendant could be prosecuted for one count of either for each shot he fired, or knife stab he inflicted.  (Discussion here and here.)  This week, citing Williams, the court summarily disposed of two cases involving the identical issue of allied offenses.  In both, they held that attempted murder and felonious assault were allied offenses; in both, they reversed the lower courts' determination that the multiple counts of felonious assaults merged as well.  In State v. Hammond, the 1st District had held that the felonious assault counts for two shots had merged; in State v. Ortiz, the 8th had merged several felonious assault counts involving separate stab wounds.

On to the courts of appeals...

Continue reading "Case Update" »

Thursday Roundup - Multimedia Edition

Yes, I know, we're doing the Roundup a day early.  I'm on the road tomorrow, and won't be back in town until Sunday.  So no post tomorrow or Monday; we'll have the Case Update next Tuesday.

Interesting juxtaposition.  No, that's not a picture of the TV room of the local nursing home.  It's a photo of the TV room at the Estelle Unit of the Texas Prison System.  Its website professes it to be a "Type II geriatric facility with wheelchair capabilities," and its purpose, as you might gather, is to house elderly inmates.

Better health care and the post- WWII baby boom have swelled the ranks of the elderly in this country -- the fastest growing segment of the American population is those over 85 -- and that's also affected the prison population.  

It's only going to get worse.  There are other factors at play here, including the abolition of parole for most crimes, "three strikes" laws, and the increasing use of  life imprisonment without parole.  And long sentences are no longer imposed only for homicide; indeed, a New York Times survey in 2004 found that of those sentenced to life in prison between 1988 and 2001, one-third were serving time for sentences other than murder, including burglary and drug crimes.  The poster boy for this is George Martorano, who was sentenced to prison in 1982 for marijuana possession and drug conspiracy.  Twenty-eight years later, he's still there, described in one article as "the longest-serving nonviolent first-time offender in the history of the United States."  And, because of the intervening abolition of Federal parole, he still has decades to go.  The net effect of all this?  Projections show that by 2030, a full one-third of the prison population will be over fifty-five.  The number of female inmates over that age in California has increased 350 percent in the last decade. 

There's a consequent effect on costs.  Georgia spends $8500 a year on medical costs for inmates over 65, compared to $950 for those under 65.  It now has a special prison for elderly inmates.  As this article notes,

"With the elderly population, we're beginning to run something comparable to nursing homes," says Sharon Lewis, medical director for the Georgia Department of Corrections. "This is one of the unhealthiest populations found anywhere. They really lived life hard."

So it was interesting that while reading the local fishwrap with my cup of joe yesterday morning, I came across a brief blurb under the "Law and Order" section noting that the Ohio Parole Board denied parole for William Perryman, who was convicted in 1978 of killing an Akron grocer.  Credit for the denial goes to Summit County Prosecutor Sherri Bevan Walsh; at least, she was eager to claim credit for it, noting in a news release that "her office has opposed Perryman's release twice since she took office and will continue to oppose his release as long as she's prosecutor."

Williams' next parole hearing will be in 2015, when he will be 69.

Bullshit lawsuit of the week.  There have been some great TV commercials in the annals of American advertising, but few can top the E-Trade Baby, whose latest appearance was during the Super Bowl:

[youtube]http://www.youtube.com/watch?v=tbLTl7egwlU[/youtube]

The line about "that milkaholic Lindsay" engendered a $100 million lawsuit by Lindsay Lohan, whose attorney claims that she is now a one-name celebrity, such as Oprah or Madonna (sans career, apparently), and that the commercial is a "subliminal message" unfairly and without compensation appropriating his client's name. 

This has caused me some consternation.  A year or so ago, I lauded John Martin, éminence grise of the appellate bar, for "spending more time before the Supreme Court than Lindsay Lohan does in rehab."  Admittedly, my blog posts don't receive quite as much distribution as a Super Bowl ad, but still...  At any rate, contributions to my legal defense fund are welcome, and should it turn out that I'm simply borrowing trouble on all this, you can rest assured that your money will still be put to good use.

And there were those who thought attorney advertising might have an impact on the view of lawyers as professionals...

 [youtube]http://www.youtube.com/watch?v=NRYXLnbPDnE&feature=player_embedded[/youtube]

Continue reading "Thursday Roundup - Multimedia Edition" »

Getting Gant right

Arizona v. Gant was one of the biggest Supreme Court decisions on 4th Amendment law in the past five years, and probably the most (only?) pro-defendant one in ten.  The decision (discussed here) effectively overruled New York v. Belton, which had permitted police to search the interior of a vehicle, and any closed containers in it, incident to the arrest of any of its occupants.  The Ohio courts have been tackling the effects of Gant -- it's been cited 23 times since it came down a year ago -- and last week the 8th did, in State v. Burke, with somewhat uneven results.

Continue reading "Getting Gant right" »

What's Up in the 8th

Sometimes I think I should use this blog as an advice column for criminals, applying the store of knowledge I glean from reading the 8th District cases.  For example, from this week's batch:

Continue reading "What's Up in the 8th" »

Case Update

The news out of Columbus was sad:  the untimely death of Ohio Supreme Court Chief Justice Thomas Moyer on Friday, coming just two weeks after the passing of Frank Celebrezze, the man he beat for the post in 1986.  Moyer was a conservative, but he was always faithful to the law, not his ideology, in his rulings.  He had an abiding passion for professionalism in the practice of law, as anyone who appeared before him can attest.  He was a true gentleman, and he will be missed. 

There were no decisions from the Ohio Supreme Court, and we discussed the major one from SCOTUS, Padilla v. Kentucky, last Thursday.  While my post concentrated on the possible effects of Padilla - what other collateral consequences of a plea must a lawyer advise his client about - the immediate effect is certain:  an immigrant's lawyer must inform him if a plea bargain is likely to result in deportation.  On the civil side of the ledger, the big decision was Shady Grove Orthopedic v. Allstate Ins., which dealt with the question of whether state law can limit a class action brought in Federal court under its diversity jurisdiction.  I'd get into a more detailed discussion of it, except (1) I don't do class actions, and I'm betting you don't, either, and (2) various commentators have described the case as presenting "a classic civil procedure conundrum that only law professors could love" (National Law Journal) or one that might be read only by "a Supreme Court junkie who's had four too many cans of Red Bull"  (WSJ Law Blog).  At any rate, Supreme Court junkies will be jonesing for a while:  the Court isn't expected to issue any new opinions until April 20.

On to the courts of appeals:

Continue reading "Case Update" »

Friday Roundup

Tort reform beckons.  Yes, we've all heard those horror stories about companies compelled to put ridiculous warnings on their products to alert consumers to the dangers of, say, putting your hand into a running lawnmower.  But, with a hat-tip to Legal Blogwatch, we find courtesy of  The Consumerist that the boys over at Antennas Direct, a Missouri outfit that, true to its name, sells TV antennas to the public, have upped the ante.   Their installation instructions carry these three explicit warnings:

Do not attempt to install if drunk, pregnant or both.

Do not eat antenna.

Do not throw antenna at spouse.

This prompted one commenter on the site to point out, hopefully in jest, "If the antenna doesn't leave my hands, it's not throwing.  Batter up, honey!"  Misogny aside, this might be a self-correcting problem.  When's the last time someone you know bought a TV antenna?

Reason #33 to worry about what's on your cellphone.  You stop in at the local Mickey D's to grab a quick bite, but several hours later you realize you left your cell phone there.  You call up the store, and the manager assures you that the phone will be put in a safe place, and you can pick it up the next day.  Which is what you do.  Unfortunately, by that time the nude photos of your wife that you'd stored on the phone have been downloaded and posted on the Internet.

Something like that's happened to all of us, but Phillip Sherman decided he wasn't going to let it just go by, so he sued McDonald's for "negligent performance of an undertaking to render services," i.e., the failure to keep his cellphone secure.  With a hat tip to Overlawyered, we find that McDonald's settled the case after losing a motion to dismiss the suit.  The article notes that this is a case of first impression.  Obviously, Sherman's wife made quite an impression...

An enigma solved, and another look at the Castle Doctrine.  The Ohio Association of Criminal Defense Lawyers used to put out a magazine called The Vindicator.  Through Herculean efforts by Cleveland attorney Mike Lear, the magazine is back in publication.  I have two articles appearing in the recent issue, and it might prompt you to fork over the $175 membership fee.  Not to read the articles, mind you; while they're good, they're similar to what you can read on here for free.  No, the real incentive would be to get a look at the photograph which accompanies my two pieces, and which provides an answer to the question which has long lingered in the minds of my countless hordes of readers:  "Gosh, Russ, why don't you have a picture of yourself on your blog?"  It's not that I'm particularly hideous; I can usually navigate the sidewalks without provoking widespread gagging or attempts by parents to cover their children's eyes.  It's just that the picture was...

Well, let's put it this way.  The initial hypothesis among Vindicator readers was that the photograph had been culled from the files of the FBI's Terrorist Watchlist.  More recently, a different theory has emerged:  the picture looks much like the ones the kidnappers send out as proof that their hostage is still alive, with the only thing lacking being me holding up a newspaper with the current date plainly visible.

At any rate, one of my articles was on the Castle Doctrine.  As I recounted in my posts here and here on the subject, the doctrine basically shifts the burden of self-defense from the defendant to the state in cases where deadly force is used to repel an intruder in one's home or vehicle.  Since the article appeared, several lawyers have pointed out that the statute refers only to the use by the defendant of "deadly force."  Would it still apply where the defendant had used non-deadly force?

This is an interesting question of statutory construction.  By its plain terms, the statute applies only to use of deadly force.  But think about this for a minute.  Can it be that the legislature intended a defendant to be relieved of the burden of proving self-defense only if he used deadly force?  Take, for example, the case of a party that goes awry:  unwelcome guests appear, and are asked to leave.  Defendant A grabs one of the intruders by the arm and tosses him off the porch, breaking his arm.  Defendant B pulls out his MAC-10 and blows another intruder away.  B gets the benefit of the statute, and the State has to prove that he wasn't acting in self-defense.  A doesn't, and has to prove that he was.

Doesn't make sense to me.  But I still take a crappy picture.

Continue reading "Friday Roundup" »

It ain't easy being a lawyer

A day after I bemoan the dilemma a lawyer faces in deciding whether to seek the withdrawal of a plea that he believes has substantially benefited his client, the US Supreme Court comes down with a decision that may further complicate our lives.  In Padilla v. Kentucky, the court holds that his lawyer screwed up by not telling him that his guilty plea meant he'd be deported.

Continue reading "It ain't easy being a lawyer" »

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Recent Entries

  • October 22, 2014
    Chilling advocacy
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  • October 21, 2014
    What's Up in the 8th
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  • October 20, 2014
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