May 2010 Archives
No way this guy "lacks insight." One of the good career decisions I made was starting up this blog. It's gotten me business, and gives some people the illusion that I know what I'm talking about, which is usually to my advantage. One of the bad career decisions I made was signing up for appointments to criminal cases on the mental health docket over at Common Pleas court. You have to be actively psychotic to be placed on the docket, and it probably doesn't hurt to be actively psychotic to take those cases, either. You get paid the same amount of money, and it's about three times the work.
One of them was for a guy who we'll call Mark, who had an unfortunate run-in with somebody else, and the somebody else got the worst of it. The somebody else happened to be his mother. Since "the bitch deserved it" didn't seem like a viable defense in this case, I worked out a deal, and, to my surprise (and probably his own), the judge put Mark on paper.
Where he actually has done quite well in the past 18 months. He's attended both inpatient and outpatient drug treatment, kept up with his mental health treatment, stayed on his meds, and stayed out of trouble. He kept using marijuana.
So we had a probation violation hearing the other day. The judge indicates that he can't overlook Mark's drug use, even though it is marijuana. At which point Mark launches into a spirited defense of his use, arguing that it kept him from stressing out, his claims culminating with the candid admission:
"I never would have caught this case if I would have smoked. I know that this sounds crazy, but I am an asshole when I am sober."
Somehow, I don't see NORML making Mark their spokesman for marijuana legalization.
Bullshit lawsuit of the week. Okay, I know you don't eat Cocoa Pebbles. But your kid might or, more importantly, watch TV commercials about it on the Saturday morning cartoons. And if your kid comes to you and says, "Boy, Hulk Hogan sure is a wuss," you'll know she watched this one.
And you'll begin to understand why Hulk Hogan decided to file a Federal lawsuit against the makers of the cereal, bemoaning the fact that he "is shown humiliated and cracked into pieces with broken teeth, with the closing banner, 'Little Pieces…BIG TASTE!"
Meanwhile, the jury is still deliberating in Wile E. Coyote's products liability suit against Acme Co. is progressing, following the plaintiff's opening statement, some of which is reprised below:
Mr. Coyote states that on December 13th he received of Defendant via parcel post one Acme Rocket Sled. The intention of Mr. Coyote was to use the Rocket Sled to aid him in pursuit of his prey. Upon receipt of the Rocket Sled Mr. Coyote removed it from its wooden shipping crate and, sighting his prey in the distance, activated the ignition. As Mr. Coyote gripped the handlebars, the Rocket Sled accelerated with such sudden and precipitate force as to stretch Mr. Coyote's forelimbs to a length of fifty feet. Subsequently, the rest of Mr. Coyote's body shot forward with a violent jolt, causing severe strain to his back and neck and placing him unexpectedly astride the Rocket Sled. Disappearing over the horizon at such speed as to leave a diminishing jet trail along its path, the Rocket Sled soon brought Mr. Coyote abreast of his prey. At that moment the animal he was pursuing veered sharply to the right. Mr. Coyote vigorously attempted to follow this maneuver but was unable to, due to poorly designed steering on the Rocket Sled and a faulty or nonexistent braking system. Shortly thereafter, the unchecked progress of the Rocket Sled brought it and Mr. Coyote into collision with the side of a mesa.
And in the Too Much Information Department, Lowering the Bar informs us that former KISS member Gene Simmons is defending a lawsuit by who woman who alleged that he "engaged in 'humping' and 'grinding'" her during her visit to a studio last year, claiming that the alleged acts were impossible "because he was wearing his KISS costume at the time and his groin was therefore heavily armored."
Under Ohio law, it's a third degree felony to possess a gun if you're under indictment or have been convicted of a felony offense of violence, or any drug offense. Two years ago, in State v. Clay (discussed here), the Ohio Supreme Court held that in order to convict a defendant of the "under indictment" prong, the state had to show that the defendant was "reckless" in knowing whether he was under indictment, rejecting the state's contention that the statute was one of strict liability.
Last year, in State v. Johnson, the 8th District went them one better, holding that the same applied to the conviction portion of the statute: the state had to prove that the defendant was "recklessly" aware that he had been convicted of a crime which precluded him from having a weapon. I said at the time that "I have a feeling this isn't going to get by the Columbus Seven," and, based on the oral argument before the Supreme Court a couple of weeks ago, my prognosticative abilities are markedly better than this guy's.
There's not too much question that Fred Johnson is a bad guy: when giving a reading lesson to his girlfriend's seven-year-old son, he took umbrage that the boy couldn't pronounce "family," and beat him to death. He was acquitted of the aggravated murder charge, but was convicted of felonious assault, two counts of felony murder, and three counts of child endangering.
And that's where the fun started. One count of felony murder was based on the felonious assault, the other on one of the child endangering counts. The trial judge merged the felonious assault and the one murder count, but sentenced him on each of the felony murder counts, albeit concurrently. But he didn't merge the felony murder and the underlying child endangering count, and ordered all three of the latter counts to be served consecutively. The 1st District concluded correctly that the two felony murders should have merged, and that the two child endangering counts which didn't underly the felony murder count didn't. But it also held that the felony murder based on child endangering didn't merge with the underlying count of child endangering, and that's why everybody got together before the Supreme Court a couple of weeks ago to argue it out.
Lessons on how to pick a jury, how to get a search consent form signed, and how to get information if you're a cop. A half-dozen decisions from the 8th this past week, none of them in the case I argued waaaaay back on January 4th, but in one the judges decide to all hang out together.
You rent a hotel room, and when you check your bill, you see you've been charged 6.5% for county and municipal taxes. Except the county and municipal government don't have taxes on hotel rooms. You sue the hotel management company, but are informed by the trial and appellate courts that you have to sue the taxing authority to get your money back. Even though they don't have your money, because they didn't assess any taxes. The Supreme Court steps in and rectifies the situation in Volbers-Klarich v. Middletown Mgmt., but the whole thing is so goofy it reminds me why I don't do tax law.
We already discussed last week's big decision by SCOTUS in Graham v. Florida, on juvenile life-without-parole sentences, but also of note was US v. Comstock. At issue was a provision recently passed by Congress allowing Federal sex offenders to be civilly committed after the expiration of their criminal sentences. The district court and 4th Circuit had held the law unconstitutional, finding that mental health issues such as civil commitment were traditionally within the purview of state governments. The Supreme Court disagreed, 7-2, the five-member majority creating a broad test for determining the scope of the constitutional clause giving Congress those powers "necessary and proper" to execute other enumerated powers. Roberts and Alito concurred more narrowly, but only Thomas and Scalia were left to beat the drum of states rights. The case may set the stage for arguments about Obama's health care legislation when it inevitably comes before the Court.
On to the appellate courts of Ohio...
March of Technology, Chapter 27. True love never runs smooth, but modernization is making it even more turbulent. Last month I told you about Phillip Sherman, who'd left his cell phone at a McDonald's. He called and learned that the manager had found it, and elicited the manager's promise that he would keep it in a safe place until Sherman picked it up the next day. Alas, by the time the latter event occurred, nude photos of Sherman's wife had made their way from the cellphone onto the Internet.
McDonald's settled the case, but Rogers Wireless, a Canadian provider, is taking a harder line with Gabriella Nagy. With a hat tip to Overlawyered, we find that Nagy is suing Rogers for a hefty $600,000. Turns out that although Nagy had the phone in her own (maiden) name, her husband had added internet and a home phone to the family's account with Rogers for cable TV service, so Rogers mailed a global invoice containing the charges for everything. Including Nagy's calls, which, her husband discovered, contained several hour-long calls to a particular number. Okay, you're ahead of me here: hubby called the number, which turned out to be that of a man with whom Nagy was conducting an affair. Hubby walked out, and Nagy was left so distraught that her work performance suffered, resultiing in her losing her job. So she's suing Rogers for "invasion of privacy" and "breach of contract," claiming that the company "ruined her life."
The company, apparently unaware of Bensing's First Law of Torts ("if something bad happens to you, it's somebody else's fault, and they should have to pay you") defended on the not unreasonable grounds that it "is not the cause" of "the condition of the marriage, the plaintiff's affair and consequential marriage break-up, nor the effects the break-up has had on her." The article also mentions that "Nagy's lawyer says this case is unprecedented in Canada." I'll bet.
And closer to home -- in the Lower 48, at least -- we have, courtesy of Legal Blogwatch, the sad saga of Milford, Conn. Ohio (see comments below) police officer Russell Kenney, suspended from his job for having on affair while on duty. The damning evidence? GPS software which confirmed that Kenney's cruiser was parked outside his paramour's condo "for periods ranging from 48 minutes to 1 hour 53 minutes," and "cruiser camera recording of Kenney having a sexually explicit conversation with a woman named 'Amy.'"
But let no one accuse Kenney of setting his sights too low: the "Amy" was Amy Brewer, the city's mayor.
Twelve really pissed off men. This article in the LA Times suggests one method of jury avoidance:
Spurned in his effort to get out of jury duty, salesman Tony Prados turned his attention to the case that could cost him three weeks' pay: A Los Angeles County sheriff's deputy was suing his former sergeant, alleging severe emotional distress inflicted by lewd and false innuendo that he was gay.
Prados, an ex-Marine, leaned forward in the jury box and asked in a let-me-get-this-straight tone of voice: "He's brave enough to go out and get shot at by anyone but he couldn't handle this?" he said of the locker-room taunting.
Fellow jury candidate Robert Avanesian, who had also unsuccessfully sought dismissal on financial hardship grounds, chimed in: "I think severe emotional distress is what is happening in Haiti. I don't think you could have such severe emotional distress from that," he said of the allegations in the deputy's case.
When other jurors began to "express disdain for the case and concerns about their ability to be fair," the lawyers saw the handwriting on the wall: they waived the jury and tried the case to the judge.
"We can't have a disgruntled jury," said attorney Gregory W. Smith, who represents Deputy Robert Lyznick in the lawsuit against his former supervisor. He called the panel "scary" and too volatile for either side to trust.
The article notes that in light of "double-digit unemployment and shrinking benefits for those who do have jobs, courts are finding it more difficult to seat juries for trials running more than a day or two," and that "in extreme cases, reluctance has escalated into rebellion."
This just in: sun to rise in east. From the New York Times:
Blacks and Latinos were nine times as likely as whites to be stopped by the police in New York City in 2009, but, once stopped, were no more likely to be arrested.
Of the reasons listed by the police for conducting the stops, one of those least commonly cited was the claim that the person fit the description of a suspect. The most common reason listed by the police was a category known as "furtive movements."
Milestones. This is my 1,000th post, so I thought I'd celebrate by sharing with you a legal ad from someone who unquestionably understands Bensing's First Law of Torts.
About the only thing the video in the background was missing was a Stuka dive-bombing fleeing Polish refugees.
I mentioned a couple of weeks ago that the Ohio Supreme Court still hasn't come down with its decision in State v. Bodyke, the case challenging the constitutionality of the Adam Walsh Act, despite having held oral argument on the case back in November. Oral argument in another case last week, State v. Richey, brought some of those issues back up again, and perhaps gave a glimpse of the various justices' thinking.
Would Clarence Thomas really support the execution of a seven-year old? That was actually the most definitive answer given in the Supreme Court's decision on Monday in Graham v. Florida.
There will come a time when everybody figures out post-release controls. That time is not today. That, a tattoo party gone wrong, and Joanne Schneider gets bad news about her sentence are the featured stories this week.
Expect a deluge of decisions from SCOTUS when it goes back into session on Monday. Maybe. If not, I'm sure the Ohio Supreme Court decisions will give me plenty to write about. Like they didn't last week; their only output was futzing around with scheduling a few more executions. By the way, for those of you who keep track of those things, there have been 18 people executed so far this year. Ohio is the only non-southern state to have killed anyone, with five; Texas leads with nine, and Oklahoma, Louisiana, Virginia, and Florida each have one. We've already matched our output from last year, when we were again the only non-southern state to execute anybody.
In the courts of appeals...
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