September 2010 Archives
In addition to this blog, I also do a summary of the 8th District cases each week on the listservs of the Ohio Association of Criminal Defense Attorneys and the Cuyahoga Criminal Defense Lawyers Association. If anything, the summaries are a bit more snarky than the stuff I post here, because it's to a more limited audience. (Which is shorthand for "I don't have to worry about certain people reading it.") A number of other people on the OACDL listserv do summaries of the appellate cases out of their district, and a guy named Stuart Benis does a very nice job summarizing 6th Circuit cases. I don't do much Federal work, but some cases are very handy to have in state criminal prosecutions as well. Plus, I don't have anything else to write about, so today I'm going to crib from Stu and highlight US v. Johnson, one of the cases he's tipped me off about over the past few weeks, and a great case on search and seizure.
Angela Moulton had a pretty good gig going, even if not a particularly creative one. She stole people's mail, applied for credit cards in their name, and used the bogus cards to purchase over $14,000 worth of luxury items. That resulted in an 80-count indictment, to which she pled no contest and was sentenced to 10 years in prison. Last week, in State v. Moulton, the 8th District rejected her contention that she could only be sentenced on one count.
One count? How'd she come up with that?
A constant source of amazement for me is the difference between Federal and state court sentencings. Federal sentencings used to be pro forma affairs -- a matter of calculating the defendant's "offense level" (what he did), cross-referencing his criminal history (who he was), and plugging it into the Sentencing Guidelines, which would spit out the sentencing range, usually a span of about ten months, which would fix the bounds of the court's discretion. Since the Supreme Court made the Guidelines advisory four years ago in Booker v. US, it's much more complicated: the court starts with the guidelines, then considers a host of other factors in determining a sentence that is "sufficient, but not more than necessary" to achieve the various goals of sentencing. A sentencing can easily take an hour or more, and then a court of appeals will review it to determine whether it's "procedurally" and "substantively" reasonable.
In Ohio state courts, the trial judge's chief goal is simply not to screw things up.
Someday soon I will be able to write about Supreme Court decisions here. That day is not today; the US Supreme Court's 2010 term officially starts next week. The court has agreed to hear oral argument in 38 cases so far, and will probably hear a little over twice that many. Last year, the Court decided 86 cases, out of about 8,000 or so that it was asked to hear. Fifty years ago, the Court got about 2,000 to 3,000 cert petitions annually, and decided about 300 cases. Up until the Civil War, the Supreme Court's jurisdiction was mandatory; it had to hear every case appealed to it. Congress changed the rules shortly after that to give the Court more discretion over its docket. By 2060, the Court will be in session for a week after Columbus Day, hear arguments in three cases, decide that it shouldn't have bother in one of them and dismiss it as improvidently granted, and issue 5-4 decision, with three concurrences and four dissents, in the other two.
Closer to home, other than a disciplinary case -- moral of the story: don't borrow money from your client, especially if you don't pay it back, and don't make your daughters beneficiaries of a trust you write for a client -- there's nothing coming out of Columbus, either. Well, there were a couple of tax cases, but if you ever come here and start reading a discussion of a tax case, call the police, because it means I've been kidnapped and somebody else has taken over this blog.
So, let's get to the courts of appeals...
The machinery of death. Teresa Lewis was executed by the State of Virginia last night, the first woman executed by that state in almost a century. Her guilt is undeniable: she hired a triggerman and an associate, two guys named Schallenberger and Fuller, to kill her husband and her 25-year-old stepson, the latter for his insurance money.
But even if you're a supporter of capital punishment -- which I'm not -- this one's got to give you a bit of trouble. Shortly after Lewis was confronted about the crimes, she broke down and confessed, and named Shallenberger and Fuller. Fuller was quick; his attorneys brokered a deal to have him testify against the co-conspirators in exchange for life without parole. Lewis' lawyers advised her to plead guilty, too; it was the same judge who'd sentenced Fuller, and they figured he'd give the same sentence. They figured wrong. The judge decided that Lewis, despite not having any criminal record or history of violence, was primarily culpable because she had "masterminded" the killings. Shallenberger pled guilty in the middle of his trial, and also got life; the judge determined that it wouldn't be fair to sentence one triggerman to death and the other to life.
Turns out that "criminal mastermind" Teresa Lewis has an IQ of 70, and had a dependent personality order that allowed her to be played by others like a pipe organ. Which is exactly what Shallenberger did; before committing suicide in prison in 2006, he acknowledged that he'd duped Lewis into the scheme: "From the moment I met her I knew she was someone who could be easily manipulated. From the moment I met her I had a plan for how I could use her to get some money."
The governor of Virginia denied clemency the other day, and Teresa's last hope, the Supreme Court, denied her application to stay the execution. Sotomayor and Ginsburg would've granted the stay. New Justice Elena Kagan did not vote to do so.
Tell me some more about the "liberal wing" of the Supreme Court.
They don't do this on Law and Order. I mentioned a couple months back that, despite the technological acumen one would normally associate with somebody who runs his own blog, I've never sent a text message in my life. I'll bet Kenneth R. Kratz, an attorney in Wisconsin, wishes he could say the same thing, after facing disciplinary action for sending several text messages to a young lady he encountered during the performance of his professional duties. Well, not just any young lady; a "tall, young hot nympth" according to the one of the messages. Another advised her that "'You are beautiful and would make a great young partner someday," and yet another queried, "'I would want you to be so hot and treat me so well that you'd be THE woman! R U that good?"
The problem was that Kratz, who at 50 was twice the woman's age, wasn't just any dirty old man, albeit one with a law degree. He happened to be the Calumet County District Attorney. And the woman he was communicating with wasn't somebody he met in a Starbucks; he happened to be prosecuting her boyfriend for domestic violence, and began sending her the text messages the day after he first interviewed her about the crime.
I don't know what's worse; that or the fact that he's also the chairman of the state Crime Victim's Rights Board.
But Kratz isn't going down quietly. After initially trying to keep the matter under wraps, then asserting that the texts were merely "complimentary," Krats finally 'fessed up to a "lapse of judgment." Still, he insisted he wouldn't resign -- either as District Attorney or chairman of the victim's board -- and claimed that the Office of Lawyer Regulation had cleared him, a statement the director of the Office said he was prohibited from confirming or denying because of confidentiality rules.
I don't know what range of punishments is available should the Office determine that Kratz's conduct wasn't proper, but the article reporting all this notes that
Kratz also prosecuted four women who were charged last year with luring a man to a motel and gluing his penis to his abdomen as revenge for his cheating on one of them.
Sounds about right to me.
See you on Monday.
A week ago, the Supreme Court had oral argument in State v. Hodge. Hodge raised the issue of whether the US Supreme Court decision in Oregon v. Ice implicitly overruled the Ohio Supreme Court's decision in State v. Foster with regard to whether it was constitutional for the legislature to mandate that judges make certain findings of fact before imposing consecutive sentences. In Foster the Ohio court said it wasn't; three years later, in Ice, SCOTUS said it was. I wrote a post last week detailing what a disaster the oral argument in Hodge had been and darkly predicting that the court would leave Foster untouched.
Well, relax. It was just the liquor talking.
Back in June, in State v. Smith, the 8th District considered a case where a defendant, a sex offender, was charged with failure to verify his current address. He'd been convicted of rape in 1988, and when he got out of prison in 2001, as the court notes, "Smith 'automatically' was classified as a sexually oriented offender." He was reclassified as a Tier III offender when the Adam Walsh Act went into effect in 2007, which meant that he had to register every 90 days for life, instead of every year for 10 years. Just a few weeks earlier, though, in State v. Bodyke, the Supreme Court had held that such reclassification violated the separation of powers doctrine; essentially, it involved a member of the executive changing a journal entry made by a judge. So, pursuant to Bodyke, the court reversed Smith's conviction of failure to verify.
The interesting thing is that if you check the docket, you'll find there never was a journal entry declaring Smith to be a sexually oriented offender.
A cardinal rule of appellate practice is that you always file a transcript of whatever proceedings occurred in the trial court. Just a couple weeks back, I pointed to an appeal in a medical malpractice case, which was lost because the plaintiff's attorneys decided to present only portions of the transcript of trial, rather than the whole thing. A corollary to that rule is, if you're going to order the transcript, it might be a good idea to read it. In Slomovitz v. Slomovitz, the ex-wife appeals a protection order, claiming that the trial court lacked personal jurisdiction because she was never served with the motion. The problem with that argument? The ex-wife appeared at the hearing on the motion, and never raised an objection to jurisdiction. From the opinion, it appears that the ex-wife's counsel first realized when it was pointed out to him at oral argument. That must have been fun.
Nothing out of Columbus this past week, although I'll have some further reflections on State v. Hodge, especially with regard to how resentencing might be impacted, later in the week. The US Supreme Court functionally begins its term next Monday with the "long conference," in which it considers the petitions for certiorari that have built up over the summer, and decides which ones to grant. Oral arguments start a week after that, and I noted something interesting about them. Prior to her appointment, as most people know, incoming Justice Elena Kagan was the Solicitor General, who has a key role with the Court; not only does the SG argue cases in which the United States is a party, the Court will often seek her opinion on what the government's position is on certain other cases. Kagan has decided to recuse herself from any case in which the SG's office did that during her tenure, and as a result, in eight of the twelve cases scheduled for argument in October, only eight justices will be deciding them. That includes the big Crawford case, Michigan v. Bryant, which I'll discuss in the next two weeks.
I may also take a look at some of the upcoming arguments in the Ohio Supreme Court in the next few weeks, assuming I get around to reading what they're actually about. For now, let's get to the courts of appeals, where we learn that illegally downloading all those Barry Manilow songs might get you in trouble with the Feds, and with anyone who has any taste in music, but it won't get you in trouble with the local gendarmes...
Wednesday's oral argument in State v. Hodge should have gone easily for the defendant. After all, it's a very simple argument. In 2006, in State v. Foster, the Ohio Supreme Court held that the 6th Amendment, as interpreted by the US Supreme Court in Apprendi v. New Jersey and Blakely v. Washington, prohibited the legislature from requiring a judge to make certain findings of fact before imposing consecutive sentences. Three years later, the US Supreme Court, in Oregon v. Ice, held that Apprendi and Blakely did not prevent a legislature from requiring a judge to make certain findings of fact before imposing consecutive sentences. So Foster was wrong, we go back to the statute the way it was before, and call it a day.
Not so much.
View more posts in the Archive »