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.
Here's an easy way to win a bar bet: ask somebody, "If you're sentenced to five years in prison, when can you file for judicial release?"
Okay, it's not likely to incur as much interest as something like, "How many intentional walks did Roger Maris get the year he hit 61 home runs?"* But it's the same type of trick question, because take a look at what the statute says. In a nutshell:
- If the sentence is less than two years, you can apply after thirty days
- If the sentence is at least two years but less than than five years, you can apply after one hundred eighty days
- If the sentence is five years or more but not more than ten, you can apply after five years
So what's the answer to the question of when you can apply if you've been sentenced to exactly five years? The answer is: you can't. You're going to become eligible for judicial release the day your prison sentence expires.
I've commented before on how, in search cases, police officers have a split-second to make decisions which judges and lawyers can then spend months second-guessing. Sometimes, though, it's the citizen who has to make a split-second decision. Like, say, how to respond to an officer's request for identification. Joseph Houser had just that decision to make, and last week, in State v. Houser, the 8th District confirmed that he'd made the wrong one.
Labor Day has special significance in Cleveland, signaling that, in a month or so, gray skies and cold winds will wrap themselves around the city, and not release their embrace for about six months. Possibly rendered morose by the prospect, the 8th District judges stir themselves only enough to issue a paltry nine decisions, about a third of its normal output. No good news for defendants, or for a lawyer seeking to get the balance of his fees.
All quiet on the Columbus front, and in DC for that matter, but things get rolling in the former locale this week, with arguments on tap in several interesting cases. In State v. Poole, Poole and her boyfriend were charged in a methampetamine operation; after she pled guilty to manufacturing, she testified in his trial and claimed that stuff found in a pocket of a coat he was wearing actually belonged to her. For her troubles, she was indicted for possession, and the trial judge in her second case suppressed her testimony in BF's trial, claiming she should have been advised of her 5th Amendment rights. The 11th District said no. In State v. Miller, the defendant agreed to pay restitution at the plea, but the judge forgot to impose it at sentencing, and modified the entry to include it several weeks later. The 8th said that's okay. The big case, though, is State v. Hodge, which concerns the impact of Oregon v. Ice on State v. Foster. (Discussed here).
So we'll have a busy week: the normal features today and tomorrow, the a look Wednesday at how the legislature screwed up judicial release, a look Thursday at what you can do when the cops ask for your ID, and a discussion of the oral argument in Hodge on Friday. In the meantime, in the courts of appeals...
Let's go to the video... oops. Remember all those assemblies in high school, where just before festivities got under way some pimply guy from the AV crew -- who everybody laughed at then, but who's now doing computer graphics for Pixar movies and making more money than you'll ever dream of -- walked out on stage and mumbled "testing, testing, testing" into the mike? Well, they should have had some pimply guy do that in Jefferson County, Kentucky, where, as this story reports, they just discovered that the new audio-visual system they put in several months ago to record their trials was only 50% effective. And the wrong 50%: it had video, but no sound. So a lot of the hearings and trials conducted in the last few months have had to be tossed out or redone, including a high-profile murder case involving the killing of a 4-year-old.
As is always the case, this led to the usual bout of fingerpointing, with the Administrative Office's chief information officer displaying a flair for pyromaniacal metaphors:
"If someone had told me they had lost a month's worth of recording, my hair would have caught on fire," he said, adding that while JAVS [the company which installed the system] had no explanation for the lost audio in the [murder] case, "we're holding their feet to the fire to find out what happened."
In fact, one judge has gone back to using a -- gasp! -- court reporter. Talk about old school.
You did too promise me a rose garden. Speaking of school, let's say you've just graduated from one of the big law schools, and you're now calculating how long it will take you to pay off that 150 large in student loan debt you've got hanging over your head once you land a job. Oh, sure, as this article relates, the recession has done a number on starting associate salaries; while lawyers fresh out of school are starting at $160,000 at the big firms in LA and New York, median salary for lawyers at all large firms dropped from $130,000 in 2008 to $115,000 last year, and starting associates in places like Detroit or St. Louis will have to make do on a hundred grand a year. Still, that's a lot more than the guy who always gave you wedgies in high school is making at the car wash. So, what area do you want to specialize in? Corporate law? Taxation? Environmental law?
Well, how about toilet law? That's the name given to the type of law many graduates wind up practicing nowadays, doing "document review" for insurance defense firms, which means sitting in a basement office and sifting through medical records for about a third of what a good plumber makes. Although if you're really good at it, there's a bigger upside, as this ad from one New York City firm makes clear:
"We have an immediate need for admitted document review attorneys - we have a document review project in our offices (25 West 31st Street, NY, NY 10001) starting on MONDAY, September 13th @ 900am.
Rate: The pay rate is based on an incentivized pay structure. You will receive a base pay rate of $25/hr, and at the end of the project you will receive a bonus check based on group performance and productivity."
Now, back in my day, when we had to walk seven miles uphill each way through five-foot snowdrifts just to get to law school, we didn't raise a fuss about not getting the big bucks as soon as we had sheepskin in hand. But this is now, and people are fighting back, with blogs like Jobless Juris Doctor and UnemployedJD.com. In fact, much of it seems driven not by anger at law firms, but at law schools themselves. Lawyers Against the Law School Scam has taken as their mission
exposing the dramatic oversupply of lawyers, and how that oversupply has been caused by bogus employment and income/salary statistics used by most law schools to induce applicants to apply to law school. Also, we are concerned with how the legal establishment is complicit in this "law school scam."
Morality Tale - Update. Back in 2007, I wrote about a Columbus attorney who was filing lawsuits based upon Ohio's "credit card truncation" statute, which prohibits printing the card's expiration date on the receipt. Shortly after the law went into effect, the lawyer apparently scouted out which stores weren't yet in compliance, sent someone in to purchase items on several occasions, and then sued the store. The first few times the plaintiff was a guy named Burdge, and the attorney's litigation strategy came a cropper: the statute required actual damages, his client had none, and the net result was that, after a while, not only were courts throwing the cases out, but they were hitting up the lawyer and the client with sanctions. In the case I wrote of at that time, it was a $3,000 bite, and I suggested the lawyer get a new client.
He did, but it was the same routine. A year later, in this post, I detailed another adventure along the same lines. This time, a tavern had agreed to pay $5,500 to settle the claim, but when the check was a week late, the lawyer said the settlement was off, and continued the litigation, even after the court held that the settlement was valid and could be enforced. That earned the lawyer an award of over $10,000 in sanctions.
So the attorney finally took my advice and got a new client: himself. And a new routine. This time, he bought a software video under a "negative option" plan -- you buy one, they'll keep sending you another each month until you opt out. He did, but the video maker kept sending him one for several more months, and billing his debit card. He got hold of them again, told them to stop, they did, and refunded all of his money.
So, 18 months later, he sued. The problem was that because he had rescinded the transaction, he wasn't entitled to monetary damages, which he didn't have anyway. He persisted in the litigation up until the judge was on the verge of granting the defendant's motion for summary judgment, and then dismissed the case. And when I say "on the verge," I mean on the verge: the judge said that the dismissal came in as he was walking to the clerk's office to give them the order granting summary judgment.
And a month ago, in Ferron v. Video Professor, Inc., the 5th District affirmed an award of $119,414.87 against the attorney and his law firm.
This week's Time magazine features the story of the 9th Circuit's decision last week denying en banc review of a January ruling that had upheld the police creeping onto the defendant's driveway in the middle of the night so as to affix a tracking device on his car, a subject I discussed here last Thursday and Friday. But a decision from the 8th last week indicates that problems with privacy and automobiles aren't confined to when you're sleeping.
Picture a bloated Marlon Brando wringing his hands while moaning, "the horror... the horror...," and you have just encapsulated the 8th District's body of work last week, at least if you work the defense side of the aisle. Of the 16 criminal cases last week, only two tossed even a crumb in the direction of defendants. A survey of the carnage:
The Columbus Seven had a quiet week going into Memorial Day, and will probably have a quiet one coming out of it, too. Things pick up after that, with oral arguments starting on September 14. The court has some interesting stuff on tap, including a bizarre disciplinary proceeding and cases on restitution and whether a judge has to advise a witness of her 5th Amendment privilege before testifying, but most eyes will be fixed on the arguments on the 15th, when State v. Hodge -- whether Oregon v. Ice overruled State v. Foster regarding consecutive sentencing -- comes up.
And, of course, we're just four weeks away from the beginning of SCOTUS's 2010 term, with arguments scheduled for the week beginning October 4th. Again, the big one there will be the following day, when the Court takes up Michigan v. Bryant, concerning the scope of the "ongoing emergency" standard for determining whether a victim's statement is testimonial under Crawford v. Washington and Davis v. Washington. I'll have more on that next week, knowing that my anticipation is matched only by yours.
On to the courts of appeals...
Not too many people get arrested for being illegally parked, but Jeanne did. The main reason was that she didn't bow and scrape to the two police officers who ticketed her car. Not that they deserved much bowing and scraping; one was a drunk who was later kicked off the force, and the other wasn't much better. Part of it was a racial thing, too: they were black, and she was a black woman, and she wasn't paying them the proper respect, so they took her in.
On the way to the station, they made fun of her weight. When she got to the station, one tried to grab her purse while she was being booked, and she instinctively grabbed at it. They knocked her down, kicked and punched her a few times, and when she got to her to her feet, she finally told them what she did for a a living: she was a state parole officer.
She told me that the place cleared out pretty quick after that.
I have served on this court for nearly three decades. I regret that over that time the courts have gradually but deliberately reduced the protections of the Fourth Amendment to the point at which it scarcely resembles the robust guarantor of our constitutional rights we knew when I joined the bench.
Sound like something departing Supreme Court Justice John Paul Stevens could have written? Not quite; it's the dissenting opinion of Judge Reinhardt in a denial of en banc consideration by, of all places, the 9th Circuit, from a decision they made in January in US v. Pineda-Moreno.
In State v. Pizarro, the defendant moves to vacate the guilty plea he entered to a kidnapping charge two years earlier, claiming that police reports and witness statements he'd subsequently obtained show he's innocent. The 8th District concludes that doesn't matter, because he pled guilty.
As Yossarian might say, "That's some catch, that Catch-22."
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