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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.

Asbestos litigation in America so far has involved 6,000 defendants and 100 times that many claimants; the total cost is estimated to reach $200 billion.   If you do a Google search for "asbestos claims," you'll see three "sponsored links" at the top of the page, and several others along the side.  If you go to any of those links, you are costing a law firm $50 or $60; that's how much those firms are willing to pay Google for each time a person clicks on them.  You want to know why?  Read the opinion in Kelley v. Ferraro, and you'll learn that the two partners in the Cleveland firm of Kelley & Ferraro, which was formed in 1997 to handle asbestos claims, earned $44 million in compensation over the next eight years.  Each.

Kelley died of a heart attack in 2006, resulting in a no-holds-barred scramble between his wife, Lynn Kelley, and the firm, with Kelley claiming that under the partnership agreement the firm had to be dissolved and she was to get something just south of $3.5 billion.  The firm offered her $10 million, and the jury was even stingier, awarding her only $4.2 million.  But the court gives her a do-over, holding that the trial judge erred in directing a verdict on all of the counts against the law firm.  The main issue was the clause requiring dissolution of the firm upon the occurrence of "any event which causes there to be only one partner."  The firm insisted that this didn't include the death of a partner, pointing to various discussions and previous drafts to prove this.  No matter, says the court; that stuff becomes relevant only if the phrase is ambiguous, and if there are two partners, and one becomes unambiguously dead, well, that means there's only one.

Terrance Hough doesn't get a do-over.  Three years ago, he celebrated July 4th by cold-bloodedly murdering three people because he was annoyed at them shooting off fireworks.  (I wrote about it here in my usual snarky style, and, if you read the comments, learned that not only lawyers read this blog.)  In State v. Hough, the 8th affirms his conviction of aggravated murder, rejecting his argument that the killings occurred because he "just snapped," rather than that they were the product of prior calculation and design.  The court's opinion does a fairly good job of tracking the law in this area:  prior calculation and design involves more planning than simple premeditation, but less than what's normally involved in a trip to the grocery store.  As with many things in law, this is an argument you're going to win at trial, or not at all.

An interesting opinion is provided by State v. Lycans, where the court rejects Lycan's argument that the seven years he got for attempted rape was disproportionate.  I've written of the futility of that argument before, but the court this time isn't as dismissive, noting that the appellate court's function is to determine whether the sentence "is outside the mainstream of local judicial practice."  Of course, with 34 judges and no data base of sentences imposed, proving that is going to be rather tricky, but it's better than "shut up and go away," which has pretty much been the court's response to these arguments to date.

Another rape case provides a most interesting outcome.  In State v. Harrison, the court rejects claims that Harrison's convictions and life sentences for child rapes should be reversed because certain jurors should have been excused for cause, counsel was ineffective for not letting Harrison testify, and the convictions were against manifest weight of the evidence.  But just prior to trial Harrison had asked to have his lawyer replaced.  The judge responded, "that request will be denied," and proceeded with trial.  The panel says a trial judge has a duty to investigate such requests, and orders a limited remand for that purpose:  if the judge determines that the request should have been denied, the verdict will stand.  It says here that this isn't the last time the 8th will hand down a decision in this case.

State v. Jones teaches us one reason why there's a court of appeals.  Jones was arraigned on December 11, 2008, and assigned a judge notorious for his "rocket docket":  a trial date of January 12, 2009, was set at the first pretrial.  When the state hadn't provided any discovery by that time, the trial was continued for two weeks.  The state did provide partial discovery the next day, and six days before trial (and the day after the Martin Luther King holiday), Jones filed a motion to suppress.  The court determined that was untimely, since it was filed less than seven days before trial.  The state also provided voluminous medical records of the victim on the day of trial, but the court rejected the defense's motion for continuance, stating(incorrectly) that the defense could have subpoenaed the documents themselves.  The inexorable result is a conviction, but the 8th reverses, finding that the motion was timely (the Rules of Superintendence permit a motion to be filed on the day after a holiday), and that the interests of justice required it to be heard anyway, and noting that the refusal to grant a continuance ""further compels our conclusion that the trial judge treated the two sides differently."

Two other cases of note.  State v. Shanklin provides a helpful tip for defendants trying to claim they're incompetent to stand trial:  given that the standard is the ability to distinguish the trial judge from a rutabaga, you're going to have to do better than telling the doctor that "it's hot in the wintertime" if you want to convince him you should be in a rubber room instead of a courtroom.  And in State v. Atkinson, the court devotes seven pages to telling us that when a judge improperly advises a defendant of post-release controls and the defendant finishes his prison sentence, the judge can't resentence him and impose PRC.  I could have done it in two, especially considering that the state conceded error.  Campaign motto for 2012:  "Bensing for Court of Appeals -- Save the Trees."

*   *   *   *   *

I've got some personal matters to attend to, so this is my last post for the week.  I'll see you next Monday.

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