July 2010 Archives
Swing to the right? Adam Liptak of the New York Times had a lengthy piece in last Sunday's edition, arguing that the Supreme Court under Chief Justice Roberts was the "most conservative in decades." That was based on coded databases of SCOTUS decisions, one going back to 1953 and the other to 1937, which essentially branded justices as conservative or liberal:
In the database, votes favoring criminal defendants, unions, people claiming discrimination or violation of their civil rights are, for instance, said to be liberal. Decisions striking down economic regulations and favoring prosecutors, employers and the government are said to be conservative.
Based on this analysis, Liptak concluded that "in its first five years, the Roberts court issued conservative decisions 58 percent of the time. And in the term ending a year ago, the rate rose to 65 percent, the highest number in any year since at least 1953." By comparison, the Warren Court issued conservative decisions only 34 percent of the time.
The conservative National Review Online takes a different view, and there's some merit to that argument, especially the argument that the Court is no more conservative than the Justice Kennedy is:
Consider Kennedy's opinions and positions on abortion (Planned Parenthood v. Casey), gay rights (Romer v. Evans and Lawrence v. Texas), the Establishment Clause (Lee v. Weisman), the death penalty (Roper v. Simmons, Kennedy v. Louisiana), national security (Boumediene v. Bush, Hamdan v. Rumsfeld, Rasul v. Bush), and the general use of contemporary foreign law to redefine the meaning of provisions of the Constitution (Roper, Kennedy, and Lawrence). Consider also, for example, that Ted Olson's entire litigation strategy in the anti-Proposition 8 case in California is premised on Olson's very plausible conviction that Kennedy will vote to invent a federal constitutional right to same-sex marriage. I simply don't see how anyone can seriously regard Kennedy as generally conservative.
I think the bigger problem is that the database approach views cases quantitatively, rather than qualitatively: Blakely and Crawford are no more significant than Arizona v. Johnson or US v. Marcus. (Don't remember Johnson or Marcus? Well, that's the point.)
Don't get me wrong; there's no question that the Court has gotten more conservative. I remember when there really was a "liberal wing": people like Brennan and Marshall and Blackmun, who were consistent votes for criminal rights and who believed that the death penalty was unconstitutional. There's nobody like that now. But Blakely and Crawford have revolutionized 6th Amendment jurisprudence, and I haven't seen anything nearly as pernicious out of the Roberts Court as the 1996 decision in Whren v. US, which held that the cops could stop a car for the most trivial traffic violation, even when that was merely a pretext. So I'll postpone the handwringing for at least another year or two.
Possible exit strategy. I may be closing down the blog, depending upon whether my application for the head of public relations at the Vatican is accepted. I've certainly got a shot; it's quite clear that the position has been vacant for some time.
Watch what you eat. Here's why you read this blog: so at the cocktail party on Saturday, you'll be able to inform your fellow celebrants that this week is the 20th anniversary of the Americans with Disabilities Act. While the president marked the occasion with an event that threatened to lapse into a self-parody of diversity -- festivities featured a diabetic singer, a schizophrenic musician, and a speech by a deaf actress -- some observers grumpily argued that the law has been a disaster, actually resulting in decreased job opportunities for the disabled. To be sure, that's been balanced by the increased employment opportunities for attorneys ever vigilant for new ways to make a buck.
The latest exhibit for the latter is the 9th Circuit's ruling this week that, by virtue of its restaurants' 45-inch high countertops, Chipotle's was denying its wheelchair-bound customers the "Chipotle experience" of watching their burritos and tacos being made.
That the plaintiff's motivation was something other than sadness at not being able to witness the creation of the culinary masterpiece pictured at right is confirmed by a finding of the District Court: that his "history as a plaintiff in accessibility litigation supports this Court's finding that his purported desire to return to the [r]estaurants is not sincere. Since immigrating to the United States in 1991, Plaintiff has sued over twenty business entities for alleged accessibility violations, and, in all (but one) of those cases, he never returned to the establishment he sued after settling the case and obtaining a cash payment."
I've been to Chipotle's too, and I never returned. Admittedly, that had to do more with having to eat their food than having to watch it being made.
Statistics show that mistaken eyewitness identification is responsible for about 50% of wrongful convictions. George Howell almost certainly doesn't fall into the latter category. Nonetheless, the 8th District's affirmance last week of his conviction and 34-year sentence for a convenient store robbery is vaguely disquieting in its treatment of identification issues.
The 132 members of the Ohio House and Senate kill whole forests in churning out legislation each year, from the mundane, like this bill designating Ohio's Official Prehistoric Monument, to the groundbreaking, like this one, requiring confessions in major cases to be video- and audio-recorded, and establishing rules for identification procedures. Oftentimes, it falls to the appellate courts to decide what those members really meant when they passed all those bills. That happened in two cases last week, one from the Ohio Supreme Court, and the other from the 8th District.
As you know, every Tuesday I do a summary of the 8th District's decisions from the previous week. Last week there were 28 of them. Maybe I'll move to Athens, Ohio. I'll not only get to ogle college coeds, but reporting on the goings-on of the 4th District is about as challenging as being the weatherman in San Diego; last week the 4th came out with exactly zero, zilch, nada decisions. Oh, well, in for a penny, in for a pound...
SCOTUS may be taking its summer vacation (that's Justice Sotomayor, reflecting on her first year on the Court), but the gang in Columbus has started churning out cases again. Three of them concern adoption: in In re Adoption of GV and In re Adoption of PAC, the court holds that a probate court must refrain from proceeding with an adoption if the juvenile court has a pending proceeding to determine who the father is. That might seem self-evident, but the dissent argues that that's not what the statute permits; in their view, it was permissible for the court to hold that the father's consent to adoption wasn't necessary since he hadn't signed on to the Putative Father Registry, despite the fact that he had filed an action with the juvenile court to obtain visitation rights, and DNA tests showed a 99.99995 percent chance he was the father. In re Adoption of JAS concerns the question of whether the pre-adoption placement procedures of RC 5103.16(D) apply even where the prospective adoptive parents already have legal custody, and the child has been living with them; the court decides that they do.
Two criminal cases of note, one of which, State v. Bess, we'll discuss on Thursday. In State v. Rohrbaugh, the defendant was charged with breaking and entering, pled guilty to an amended indictment charging receiving stolen property, and appealed the restitution order. Instead of considering that, the 3rd District reversed the conviction, finding plain error in the indictment being amended to change the identity of the crime. Well, no, it's not plain error when the defendant not only agrees to the change, but receives a benefit: the state dismissed six other charges in return for the plea.
Among several disciplinary cases comes the conclusion of the saga of Portage County Municipal Judge John Plough, whose exploits, chronicled here, earn him a 12-month suspension with six months stayed.
On to the courts of appeals...
Once a con, always a con. Daryl Simon didn't go in for those low-rent scams, like calling old ladies and telling them they'd just won the Botswana Lottery and needed to send him a grand to pay the taxes before he sent them their check for $24 million. No, his scams involved things like buying a car for 30 large with a bogus cashiers check, and running a high-tech credit-card forgery operation out of his apartment; when the cops raided it, they found over 1200 stolen credit card numbers and personal information.
Still, he hoped to get a break from the federal judge who was to sentence him on his credit-fraud and bail-jumping charges. After all, he'd submitted plenty of evidence of good character: pictures of him doing charity work at hospitals and schools, and letters from various charitable organization and individuals attesting to his non-criminal qualities.
Turns out that was fake, too. The prosecutors took a look at the pictures and determined they'd been photoshopped. In fact, one picture was the exact same: Simon appeared with a physical-therapy patient, and in the other the exact same image, flipped, had him placed next to a teen-age student.
The judge, thoroughly unimpressed, gave Simon a 235-month sentence for the other crimes, and tacked on fifty more for "attempting to commit a fraud on the court."
According to the story (h/t to SL&P), at one point Simon worked as a magician under the name Justin Lusion. I'm guessing he finds no lack of reality in the bars on his windows in the next quarter-century.
"Fleeting Expletives" Update. As the legions of my regular readers know, I've faithfully chronicled the legal oddyssey resulting from Bono's speech at the 2003 Golden Globe Awards, in which he immodestly declared during his acceptance speech that his award was "fucking brilliant." This prompted a fine from the FCC, which announced that it was ending its "fleeting expletive" policy, in which isolated incidents of profanity would not be punished, and would henceforth penalize any use of the word "fuck." My post here detailed the 2nd Circuit's reversal of the fine, which the Supreme Court itself reversed, but on narrow administrative law grounds. It sent the case back to the 2nd Circuit for consideration of the other issues raised in the case, but not addressed.
Like the free speech issues. And sure enough, last week the 2nd Circuit again reversed the FCC, this time concluding that the agency's policy was "void for vagueness" on First Amendment grounds. The FCC could decide to go back before the Supreme Court, but it had barely escaped before with a 5-4 decision, and even at that, Justice Thomas in his concurrence had expressed a willingness to revisit the entire issue of whether the First Amendment allowed the FCC to regulate broadcast content at all.
So, be forewarned that Janet Jackson's breast could be coming to a TV screen near you.
Here's someone who never watched Bugs Bunny cartoons. From my forthcoming book "It is Impossible Not to Write Satire" comes this story from Germany:
As school pranks go, drawing rabbits on the blackboard may seem rather tame. But it has triggered a court case in the northern German town of Vechta where an outraged school teacher filed a legal complaint against the alleged offender, a 16-year-old schoolgirl, and accused her of spreading the vicious rumor that she suffered from rabbit phobia.
Marion V., who teaches German and Geography, refuses to say if she is actually afraid of rabbits. But when she walked into the classroom and spotted the drawing [of a rabbit] on the board she burst into tears and fled.
Well, truth is a defense in the Fatherland as well as here, and the teacher's defamation suit was dismissed, the court holding that "V.'s fear of rabbits is a fact, which the defendant proved in court." Good thing; the story notes that if the defendant "was found guilty, she would have faced a €5,000 fine for any further incidents of rabbit drawing in front of V."
Slumming. If you don't happen to have anything better to do -- and if you're reading this blog, we both know the answer to that question, don't we? -- you might want to take a stroll over to the Tosh.0 blog and vote on your favorite Lindsay Lohan mugshot. I have to confess that I'm sorta partial to the July '07 clip. For those of you who appreciated her agony when it was announced that she was going to have to spend 90 days in jail for what seemed like only her 57th probation violation, you'll be glad to know that the sentence won't be quite so draconian; due to jail overcrowding and a resultant policy of shortened stays, Lohan, who donned the orange jumpsuit on Tuesday, has a release date of August 2.
Which, according to my calculations, should have the Tosh.0 blog re-running its contest about eight months from now, this time giving contestants four options.
A revolution always starts somewhere. This one might have started with Kimberly Hurrell-Harring trying to smuggle marijuana in to her husband, who was a resident of a New York state correctional facility. Her lawyer, Patrick Barber, told her that she had no options but to plead guilty to a felony. She did. The day before she was to be sentenced, Barber got a call from another attorney, who told him there was a case pending in the appellate courts on the issue of whether that amount of marijuana could be defined as "dangerous prison contraband," or whether it was ordinary contraband, which would have been a misdemeanor offense. Barber wasn't interested; he didn't ask for copies of briefs, and made no mention of the case the next day at sentencing. He later said he was afraid of bringing up the issue because he feared that it would make prosecutors ask for a longer prison sentence. Hurrell-Harring was given four months in prison and lost her job.
Her life changed for the better when an appeals court overturned her conviction on the basis that the amount of marijuana didn't qualify as dangerous contraband. Barber's life changed for the worse when he was subsequently disbarred for fabricating family court orders and letters. But Hurrell-Harring then became the featured plaintiff in a case challenging the way New York State handles indigent criminal defendants, and on May 6 of this year, the New York Court of Appeals agreed in Hurrell-Harring v. New York that the state's system of paying for lawyers for indigents might be so deficient that it constituted a violation of the defendant's right to counsel.
That system is not too dissimilar from the one Ohio has.
I'm not a detail guy. My buddy Paul is; he's the one who figured out that you couldn't use a 5th degree felony to impeach a witness. (Check it out; under EvidR 609, you can impeach someone with a crime that was "punishable by death or imprisonment in excess of one year"; a felony five is punishable by a maximum of one year.) He'll pick things out of indictments or police reports that I'd never catch.
And that kind of attention to detail can pay off, as a couple of 2nd District decisions last week showed.
How bad were things for criminal defendants at the Lakeside this week? Bad enough that the State won two, count'em, two suppression cases. There was a reversal of a municipal court conviction, which is pretty much of a dog-bites-man story anymore, but other than that, nada.
The birthday went quite well, thanks for asking. I had told the others in my office that I didn't want anyone spending more than $50 for a birthday present for me, and I can happily report that no one had any problem complying with that request. What's more, the Ohio Supreme Court actually came down with some decisions.
None particularly earth-shattering, mind you. In Heintzelman v. Air Experts, the plaintiffs had obtained a judgment against a tortfeasor, then filed a supplemental complaint against his insurer, only to find that the insurer had obtained a default declaratory judgment against the tortfeasor stating that it had no duty to defend him. Are the plaintiffs bound by that? No, says the court in examining the statutes and drawing simple rules: one suing an insurer on a supplemental complaint is bound by an earlier declaratory judgment action if the insured initiated it, or if the plaintiff is an assignee of the insured. But if a plaintiff is a judgment creditor, they're not bound unless they were joined in the declaratory judgment action.
One other civil decision of note. You're representing a plaintiff in a tort action, and he completely bollixes his deposition. Can you create a "genuine dispute of fact" and thereby avoid summary judgment by having him submit an affidavit that contradicts his deposition testimony? No, said the court four years ago in Byrd v. Smith, unless the contradiction was sufficiently explained. Pettiford v. Aggarwal extends that same rule to a retained expert whose affidavit is inconsistent with his deposition testimony. The court leaves for another day the question of whether that rule should apply to a non-party witness, or to a non-retained expert, e.g., a treating physician who "is not being compensated for his or her testimony." That day may never come for the second instance, since the existence of a doctor willing to appear uncompensated at a deposition is as debatable as that of Sasquatch, beef jerky commercials notwithstanding.
So let's take a look at what happened in the courts of appeals...
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