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June 2010 Archives

The Whimsy of Search & Seizure Law

Yesterday I promised to take a look at four cases from the 8th dealing with search issues.  If I were writing children's books instead of a legal blog, I'd probably entitle this post The State's Terrible, Horrible, No Good, Very Bad Week in 4th Amendment Cases.  The State's already sporting a losing record on that issue this year, and last week went to bat in four cases, and came up empty in three.  They can draw some solace from the fact that it could've been an o-fer.  Perhaps best demonstrating the vagaries of this area of jurisprudence is that they could have just as easily won all four.

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What's Up in the 8th

Four, count 'em, four search decisions out of the 8th, so they get their own blog post tomorrow.  In other cases from the 8th last week, the degeneration of the English language that technology has wrought continues apace, another judge is reminded that the abuse of discretion standard isn't triggered unless you exercise some, and the Yuletide season comes early.

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Case Update

One of the things I learned in the past two weeks is that, in a hospital, a nurse telling you that the doctor will be with you shortly means the exact same thing as a bailiff in courtroom telling you that the judge will be with you shortly.

The penultimate week in the Supreme Court's current term saw decisions in the "honest services" cases, the most significant of which was Skilling v. US.  Skilling, as CEO of Enron, had misrepresented the company's fiscal health before it collapsed, and was prosecuted for a variety of crimes, including "honest services" fraud.  (Earlier post here.)  While three justices would have tossed out the statute as unconstitutionally vague, the Court doesn't go that far, but unanimously holds that statute requires proof of some bribe or kickback.  That wasn't present in this case, so the Court vacates Skilling's conviction on that count and remands the case back for determination of whether the error is harmless in regard to the money fraud and securities fraud convictions. 

Actually, as much of the opinion in Skilling is devoted to the issue of whether the trial court should've granted a change of venue, given the huge publicity surrounding Enron's collapse.  The Court held that a change wasn't necessary, and those inquiries are too fact-intensive to lend themselves to recapitulation in a blog post, but if you've got a case on that issue, Skilling's a must-read. 

There were also a couple of 1st Amendment cases.  Doe v. Reed concerned a referendum to challenge a gay-rights law in Washington; the petition signers contended that the state's public records law, which would have allowed release of their names, infringed on their free speech rights.  The Court rejected that claim, but only as to the facial challenge to the public records act; remaining in the district court, and yet to be addressed, is the claim that release would be improper because it would subject the signers to "threats, harassment, and reprisals." 

In Holder v. Humanitarian Law Project, the Court upheld a law prohibiting providing any services to terrorist groups, in this case, a Kurdish insurgent group, and the Tamil Tigers, a group promoting an independent state for Tamils in Sri Lanka.  While the HLP's services were of a decidedly non-terrorist bent -- it provided training to the two groups in how to use international law to resolve disputes peacefully and how to effectively petition the United Nations and other international organizations -- the Court essentially deferred to the determinations by the executive and legislative branches that even this type of aid could further the terrorist aims of the organizations.

The big case out of Columbus was McFee v. Nursing Care MgmtNursing Care Management's policy was that an employee had to be employed for year before becoming eligible for any leave for any purpose.  McFee gave birth eight months after she was hired, and was terminated for violating the company's leave policy.  The 5th District had held that the company's failure to provide for maternity leave constituted sex discrimination, but the court reverses, holding that a company may maintain a uniform minimum length of service policy, and that Nursing Care's policy was "pregnancy blind."  I don't know in how many cases Justice Pfeifer has been the lone dissenter, but whatever that total is, McFee increased it by one.

In the courts of appeals...

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What's Up in the 8th

Only nine opinions last week, about than half the usual output.  But the 8th District does close the book on two big cases -- Lynn Kelley has a good week, Terrance Hough has a bad one -- so let's take a look.

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Case Update

Despite the fact I write a blog, I'm pretty much an idiot savant when it comes to technology; I've never even sent a text message.  Jeff Quon, a member of the SWAT team of Ontario, California, can't make that claim:  during a single month, he sent 456 of them over his department-issued pager.  And that was just during work hours.  Unfortunately, about 400 of them were non-work related, and some were sexually explicit.  He was disciplined for this, and he in turn filed suit against the city for violating his privacy rights by looking at the messages.

The extent of an employees' privacy rights, in the age where everybody at work has a computer and an email account, is one of the hot new legal topics:  exactly what reasonable expectation of privacy does an employee have?  This is of much greater import in government-employee situations, because there the 4th Amendment applies.  Unfortunately, in Quon v. City of Ontario, the US Supreme Court last week dodged that issue entirely, stating that regardless of what Quon's expectations should have been, the fact that the search was "motivated by a legitimate work-related purpose" saved it.

Stop the Beach v. Florida involved another big issue.  Over the past several decades, conservatives have argued for a more expansive reading of the Constitution's "takings" clause:  that it does not require compensation just for property seized under eminent domain, but for any government action that substantially reduces the value of the property (e.g., the government's declaring that a portion of your property is wetlands, and off-limits to development).  The obvious result this would have in environmental law had many concerned about the outcome here, which involved a suit by condo owners against a Florida action which would have created a new beach and thereby effectively converted the properties from oceanfront to oceanview.  Again, the Court dodges that issue, instead engaging in a lengthy discussion of littoral rights.  Well, I assume it was lengthy; I stopped reading it the second time "littoral rights" was mentioned.  If you're still looking to quench your thirst for knowledge, this article and this one discuss the issue in more detail than I can muster.

As for the output from Columbus, I covered the major decision on Friday, so let's get to the courts of appeals...

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Another stab at Crawford

Ever since the US Supreme Court revolutionized 6th Amendment jurisprudence with its 2004 decision in Crawford v. Washington, courts have wrestled with the issue of exactly what constitutes a "testimonial" statement under Crawford.  The Ohio Supreme Court's done it three times, and took another shot at the issue yesterday in State v. ArnoldIt did little to clarify the issue, and there's a case to be made that it muddied it further.


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Incarceration Nation

The United States now incarcerates 753 out of every 100,000 of its adult citizens.  We're No. 1, by a huge margin:  Poland is second, with 240.  Most of the Western European nations aren't even in the rear-view mirror, averaging about a tenth of our rate.  Japan clocks in at a measly 63.

Actually, Ohio doesn't rank that high, either, with 586 per 100,000 adults.  Of course, the better indication of the real situation is that the figure back in 1971 was 112.  Or this:  in that period, spending on prisons in Ohio increased five times faster than spending on higher eduction.

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Swinging for the fences

You've got to give the Franklin County Prosecutor's Office credit for thinking big.  Faced with an adverse appellate decision on a search issue, they decided to go for the home run.  After the oral argument in the Supreme Court last week, it looks like they dribbled a grounder to second.

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What's Up in the 8th

Burnes Lottie finds out that "the more the merrier" isn't the best philosophy for deciding whom to invite to your sentencing, and the 8th District's ouevre this week provides us with Reason #384 why I don't do divorce work.

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Case Update

While there are still 24 cases to be decided by the US Supreme Court before its term ends in two weeks, only three came down this past week, all involving Federal issues:  Barber v. Thomas concerned good-time credits for Federal prisoners, and Hamilton v. Lanning involved bankruptcy law. 

Perhaps the most interesting was a civil case, Krupski v. Costa Crociere, which concerned whether a motion to correct the name of a party after the statute of limitations had run "related back" to the original filing.  The Court unanimously said it did, taking a much more liberal view of Fed CivR 15 than the Ohio Supreme Court did of the state counterpart a few weeks back in Erwin v. Bryan; there, the court held that identifying "John Doe" defendants had to be done before the statute of limitations expired.

In addition to KRE v. Roberts, discussed Friday, the latter court handed down several decisions this past week.  In State v. Williams, they decided that the statute allowing involuntary commitment of a defendant who cannot be restored to competency is a civil, rather than criminal, proceeding, thus avoiding due process and equal protection problems.  Boley v. Goodyear Tire involved the question of whether Ohio's statute on asbestos exposure allows a lawsuit by someone who was exposed to the asbestos outside the owner's premises, in this case, the wife of an employee who died of mesothelioma as a result of breathing in asbestos dust when she shook her husband's workclothes out before laundering them.  No, it doesn't, concluded the court. 

In the courts of appeals, there's nothing of note in the civil side, but plenty  criminal cases...

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Bitch-SLAPP

Justin Kurtz was pissed.  T&J Towing had hauled his car away from his apartment complex, and so he created a Facebook page called "Kalamazoo Residents against T&J Towing."  That landed him in court:  T&J, claiming that the site was hurting their business, filed a $750,000 defamation suit against Kurtz.

Scott Roberts was pissed, too.  He'd purchased a Pontiac engine block from Kauffman Racing Equipment, but concluded that it was defective, and vented his spleen by posting caustic criticisms of KRE  on various Internet websites.  That got him sued, too; KRE filed a complaint alleging defamation and intentional interference with contracts.

One big difference.  In Kurtz's case, everything is local.  Roberts, though, is a resident of Virginia, and KRE's suit was filed here in Ohio, where the company is located.  And yesterday in KRE v. Roberts, the Ohio Supreme Court decided by a 4-2 vote that Roberts will have to come up here to defend the lawsuit.

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Avant le deluge

There are still a number of important US Supreme Court decisions in the pipeline, and they'll be coming out in the next couple of the weeks as the Court wraps up its term.  And the Ohio Supreme Court can always provide entertainment, as it did with its recent holding that a cop's unaided estimation of speed was sufficient for conviction of speeding, a decision that's already in the early stages of a legislative override

But today's a slow day, so I thought I'd take a closer look at a couple of 8th District decisions from a few weeks back.

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When being silent doesn't mean you want to remain silent

Last year was the Big Year for 4th Amendment cases in the US Supreme Court.  This year is shaping up as the Big Year for the 5th Amendment.  While defendants went one for three last year, losing in Herring v. US and Arizona v. Johnson before staging an impressive come-from-behind win in Arizona v. Gant (cases discussed here), though, so far they've been shut out in the three cases handed down.  In Florida v. Powell  and Maryland v. Shatzer (both discussed here), the Court rejected a contention that a Florida police advisory to a suspect about his Miranda rights was defective, and that even if a suspect invokes his Miranda rights, police can resume questioning as long as they wait at least two weeks to do it. 

Those results weren't surprising; only Stevens dissented in Powell, and Shatzer was unanimous.  The knives came out, though, in Tuesday's decision in Berghuis v. Thompkins, the 5-member majority concluding that a defendant has to "clearly" invoke his Miranda rights, and that waiver of those rights could be inferred from the fact that he finally said something at the end of nearly three hours of police interrogation, and a spirited dissent from Sotomayor arguing that the Court went much farther than it needed to in whittling down Miranda's protections.

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What's Up in the 8th

On the day of trial, your client gets cold feet:  he wants to take the deal the state's offered him.  You talk to the prosecutor, the deal's still available, and it offers a reasonable resolution of the matter, without necessitating the expenditure of scarce judicial resources, like, say, spending a week in trial.  Only one problem:  this particular judge has a rule that he won't accept a plea on the day of trial.  You try to explain the situation, but he doesn't relent, so off to trial you go.

Not anymore, after the 8th's opinion last week in State v. Switzer.

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Case Update

The big case out of DC was Berghuis v. Thompkins, involving the question of when a suspect properly invokes or waives his Miranda rights.  I promised to do something on that last week, but the Monster Cage Death Match interfered.  ("How'd that go, Russ?"  Well, let's put it this way, I've always been a military history buff, and now I have a fuller appreciation of how Custer felt at the Little Bighorn.)  I'm a man who keeps my promises, except when I don't, so believe me when I tell you I'll get to that on Wednesday, and it may be that I will.

We covered the Bodyke decision on Friday, and the other biggie out of Columbus was City of Barberton v. Jenney, which held that an officer's estimation of speed, unaided by radar or other similar devices, is sufficient to sustain a conviction of speeding.  Although the decision has generated the expected wailing and gnashing of teeth, several points to keep in mind:  (1) this was already the law everywhere in Ohio outside of Cuyahoga County; only the 8th District held the contrary; (2) the decision doesn't allow any officer to testify as to speed, but only those who are "trained, certified by the Ohio Peace Officer Training Academy. . . , and experienced in visually estimating vehicle speedIn the courts of appeals..."

The problem with the decision is that it requires differentiation between a trial court standard of proof and an appellate standard of review.  Jenney was proposing a "bright line" rule:  that only evidence provided by some speed-measuring device was enough to convict.  The court's rejection of this was arguably correct; there are certainly circumstances where a trained officer's estimation of speed would be legally sufficient.  Unfortunately, there's the likelihood that a lot of trial judges are going to interpret "legally sufficient to stand on appeal" with "that's enough for me to find someone guilty."  The result will be that in some courts, an officer's testimony on that issue will be accepted automatically and uncritically.  Like that doesn't happen anyway.

A quick look at the courts of appeals, where it was a slow week...

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It was the liquor talking

Yet another reason I shouldn't rush to get posts out early in the morning.  Of course there's nothing wrong with the prospective application of the AWA.  Even assuming it's punitive, there's no more problem with the legislature prospectively imposing the additional sanction of registration and notification than there is with the legislature prospectively  increasing the penalty for rape from 10 years to 15 years.  D'oh!

There are some other questions raised by Bodyke, though.  What happens to charges of violating the notification or registration provisions to people who were reclassified under AWA, if the reclassifications are now invalid?  That's a topic we'll addess next week, by which time I'll have hopefully sobered up.

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What Bodyke means

First, it means that my prognosticative abilities are no better than your friendly neighborhood crack addict's; I'd predicted two weeks ago that the Supreme Court wouldn't tackle an issue like sex offender registration and notification in an election year.  Well, they did; in State v. Bodyke, by a 5-1 vote, the Ohio Supreme Court yesterday struck down the portion of the Adam Walsh Act allowing the attorney general to change the registrations of offenders convicted before the Act's passage in 2007.  The way that it arrived at that decision, and some parts of the opinion, proves most interesting.

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One of the problems...

... of having to work for a living is that sometimes you don't have the time to do stuff like this.  Which I haven't this week; I've got a Monster Death Cage Match hearing today, and I've had to spend so much time on it that I haven't had any to peruse the big US Supreme Court decision that came down on Monday regarding Miranda rights, or to follow up on a couple of 8th District decisions that I didn't get to on Wednesday.  So no post today, but after the hearing I'll do my best to crawl back to my office and churn out a couple for tomorrow.  See you then.

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8th District Roundup

There's ineffective assistance of counsel, and then there's really ineffective assistance of counsel.  My Cousin Vinnie was a great movie, but life doesn't always imitate art, as Charles Dobson learned to his sorrow.

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Case Update

SCOTUS handed down six decisions last week, two of some significance (well, to me, anyway).  US v. Marcus involved a defendant convicted of sex trafficking from the period 1998 to 2001.  The law hadn't gone into effect, though, until 2000, and on appeal Marcus argued that the judge had erred by not instructing the jury that pre-enactment conduct couldn't serve as the basis for their verdict.  Although Marcus hadn't raised the issue at trial, the 2nd District bought it on a plain error analysis.  The Supremes reverse 7-1 (Sotomayor didn't take part, as she was one of the judges who handled the case below), finding that the 2nd District's test for "plain error" was, well, erroneous:  the test requires a "reasonable probability" that the error affected the trial's outcome, while the 2nd District had used an "any possibility" standard.  More interestingly for Colon critics, the Court rejected the notion that the failure to give the jury instruction was "structural error." 

The only other criminal case decided by the Court was US v. O'Brien, in which the defendant was charged with attempted robbery with a firearm, and a count that the firearm was a machine gun.  The government moved to dismiss that count, stating they couldn't prove it beyond a reasonable doubt, but still insisted that the judge could give the defendant the 30-year mandatory minimum prison sentence that using a machine gun entailed by determining it was an enhancement on another count.  Nobody bought this, the Supreme Court affirming 9-0 that whether the firearm was a machine gun was an element of the offense, to be found by a jury, and not a sentencing factor.  This wasn't a Blakely issue; that case doesn't even get mentioned until the concurring opinion, and really was a question of construction of a Federal statute.

Down in Columbus, if you lose that time-stamped copy of a court filing, don't worry:  a document is "filed" with the clerk of courts when it's given to and accepted by the clerk, and when filing hasn't been endorsed, it can be proven by other means, says the Supreme Court in Zanesville v. RouseBut if you're filing a complaint near the expiration of the statute of limitations, and you don't know all the potential defendants' names, do worry:  in Erwin v. Bryan, the court says that the plaintiff's attempt to use the "John Doe" naming procedure doesn't work, because she knew the name of the doctor at the time she filed suit -- she just didn't know that he'd been negligent.  If I did more civil work and had more time, I'd spend some of it discussing the case in more detail.  Suffice it to say that if you do more civil work and you want to name "John Doe" defendants, you'd probably best be advised to put your carrier on notice when you file the complaint, regardless of whether you get a time-stamped copy.

Finally, in the lawyer discipline area, if you don't know what frotteurism is, you'll probably want to read this.  Moral of the story:  hitting on clients isn't a good idea, and hitting on the sheriff's deputy at the jail where you're visiting a client is an even worse one. 

In the courts of appeals...

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