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:

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:

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.

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. (keep reading…)

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. (keep reading…)

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… (keep reading…)

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:

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…

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. (keep reading…)

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:

(keep reading…)

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: (keep reading…)

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.

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.

(keep reading…)