April 2010 Archives
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.
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.
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.)
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.
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...
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.
I don't know what shouts "professionalism" more: the open shirt or the shades?
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.
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.
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.
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...
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