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October 2010 Archives

While I'm away...

As can be seen from this picture my wife took of me this morning, this Maui vacation has really had a rejuvenating effect on me. 

I'll be back on November 1, with a bitchin' tan and more insightful legal analysis, coupled with a healthy dose of snark.  See you then.

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Friday Roundup

A woman scorned.  Here's the way it starts:

Carol Ann Bond was excited when her closest friend, Myrlinda Haynes, announced that she was pregnant.  Bond’s excitement turned to rage when she learned that her husband, Clifford Bond, was the child’s father.  She vowed revenge.

The plot outline for the latest Lifetime Movie Network event?  No, it's from one of the opening paragraphs in the 3rd Circuit's decision last year in US v. BondOne moral of the story is that it's not a good idea to sleep with your best friend's husband if your best friend is employed by a chemical manufacturer.  (Using proper birth control might be Lesson #2.)  Bond obtained several toxic chemicals which work on minimal topical contact -- through the skin -- and spread them on Haynes' house doorknob, car door handles, and mailbox.

For that, Bond was convicted of in Federal court of possessing and using a chemical weapon.  She appealed on the grounds that the offense was an unconstitutional appropriation of powers reserved to the states, but the 3rd Circuit rejected that, finding that the statute was enacted to implement the treaty obligations of the United States under the 1993 Chemical Weapons Convention, and therefore fell under the Necessary and Proper Clause of Congress' powers under the Constitution.

Last week, the Supreme Court granted cert, and that could prove to be very interesting.  On the one hand, the Court gave a rather expansive reading to the Necessary and Proper Clause just last term in US v. Comstock, which upheld a law allowing Federal sex offenders to be civilly committed after expiration of their sentences, against the argument that civil commitment and mental health issues were traditionally reserved to the states.  On the other hand, as I explained after the Circuit Court's decision came down in Comstock striking down the law, there's growing concern over the expansion of Federal crimes into areas which normally fall within the ambit of the states, such as Rajah Baylor's conviction and 12-year sentence for robbing a Little Caesar's in Cleveland, prosecuted under the Federal Hobbs Act.  Back in the 1990's, the Court expressed some interest in reining in the Federal government's powers by resuscitating the 10th Amendment, moribund since the 1930's.  It'll be interesting to see how Bond's case plays out.

Fun on the high seas.  People keep telling me I ought to go on a cruise.  They say it's the best time they ever had.  Never been on one, although I've been thinking about it.  My thinking took a turn for the worse after reading Cruise Law News.  I first read about Cruise Law News; it's a blog done by Jim Walker of Walker & O'Neill, who are "maritime lawyers."  For a long time, Jim made his living defending cruise companies from lawsuits.  He switched sides a few years back, and now makes a living suing them.

His former employers filed motions to disqualify him from those cases, with no luck.  Well, whatever he wanted to stay with them, they should have paid.  And forget what he costs them in his lawsuits; his blog alone is a powerful disincentive to those contemplating a Caribbean cruise.  For example, thinking about touching down in St. Thomas, in the Virgin Islands?  Their web site informs us that "when walking in St. Thomas, you will see the bustle of  Main Street, and cool emerald hills."  You will also probably see bodies stacked up like cordwood, at least according to Jim Walker; he informs us that "St. Thomas has one of the highest homicide rates in the world," clocking in with 42 so far this year in a population of only 100,000.  By comparison, the chances of winding up with a toe-tag in a Detroit morgue as a result of foul play are only 46 per 100,000.  Another post offers headlines like "18 Passengers from Royal Caribbean & Disney Cruise Ships Robbed by Shotgun in the Bahamas."

What would Mickey Mouse say?

'Tis the season.  Probably one of the smartest investments I ever made was in a TiVo system.  (At the other end of the scale was the ten large I sunk into a limited partnership in a real estate deal in Atlanta in which, my ex-financial advisor assured me, I would double my money in a couple of years.  Five years later, I got an invitation to join the class action lawsuit against the general partners.  If you're new to the investment game, this is Not a Good Sign.)  I haven't watched live TV, except for sporting events, in years.

Which spares me the ordeal of watching the plethora of political ads telling me why Jim Smith must be elected to Congress to in order to save the country from the wretched socialistic excesses of Barry Jones.  But every now and then, a political ad goes so over the top that I'm sorry I missed it.  In this case, I would not only have to watch live TV, I'd have to live in Orleans Parish, where, of all things, the race for coroner has generated this ad, comparing the incumbent to Dr. Frankenstein:


Just a reminder that I'm going to be on vacation the next couple of weeks.  If I post anything here during that time, you can be sure it won't be about law.  I'll start back with that on November 1.

Continue reading "Friday Roundup" »

Open Discovery: A progress report

You're representing a defendant in a domestic violence case, and comes time to cross-examine the alleged victim, you're loaded for bear.  Your client's told you about the four times he had to call the police on her, and you went and dug up those police reports, combing them for material you might be able to impeach her on during cross-examination.  Sure enough, you ask her about a statement she made during one of the earlier incidents, she denies it, and a slow smile spreads across your face as you pick a piece of paper up from the trial table and say, "Your Honor, may I approach the witness?"  He nods, you present the witness with the paper, and ask, "Ma'am, could you look at the second page of that document and tell us, is that your signature?"

At which point the prosecutor objects, and after a heated sidebar, the judge excludes the evidence because you didn't turn it over in discovery.

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Some ruminations on Crawford

I had to go down to Madison Correctional on Friday to visit a client.  It's about 40 minutes west of Columbus.  The drive from Cleveland to Columbus isn't the best, but it's not the worst, either.  (The trip from Columbus to Cincinnati, on the other hand, is about three steps up from an Apache torture session.)  Sometimes spending six hours in a car gives you time to think about stuff. 

Here's one of the things I thought about:  whatever happened to Winona Ryder?  Cute as a button, has some nice movies, then gets caught shoplifting about $5,000 worth of stuff in 2001, and pretty much disappeared.  Elliot Spitzer, on the other hand, looks like he fell out of the Ugly Tree and hit every branch on the way down, has to resign as governor of New York because he spent $80,000 on hookers, and two years later he's got his own TV show.  Oh, well, as they say, fair is where your pig wins a ribbon.

One of the other things I thought about was a comment by Justice Scalia in the oral argument in Michigan v. Bryant last week.

Well, hell, it was a six-hour trip.

Continue reading "Some ruminations on Crawford" »

What's up in the 8th

Sometimes you need to read a good bit of an opinion before you get the gist of the facts.  Sometimes you don't.  Take, for example, this paragraph from the 8th's decision last week in State v. Blacho:

S.W. testified that appellant was her economics teacher during her junior year at Strongsville High School.  They became friends because of their common interests in music and movies.  She acted as appellant's student aide, a position she described as "kind of just an excuse to hang out with each other."

There are a limited number of ways this can turn out, and one of them is not as the plot outline for an after-school special on the Disney Family Channel.  After that, you can pretty much skip to the end of the opinion, where Blacho's conviction on two counts of sexual battery is affirmed.

Continue reading "What's up in the 8th" »

Case Update

I discussed the Supreme Court argument in Michigan v. Bryant last week, but most of the attention was focused on Snyder v. Phelps, the case involving Fred Phelps, erstwhile pastor of the Westboro Baptist Church in Topeka, Kansas, whose handful of nutcase followers traipse around the country protesting military funerals, on the theory that the deaths of American soldiers are God's punishment for America's tolerance of homosexuality.  The plaintiff, the father of a dead soldier whose funeral was the subject of one of Phelps' protests, sued and won $10.9 million, only to have that reversed by the court of appeals.  The issue before the Court last week was whether speech should lose its constitutional protection when it is "outrageous" or intentionally inflicts "severe emotional distress."  Well, on a scale of 1 to 10 for loathsome, Phelps gets a 12, but so do Neo-Nazis and some other people, and they've got First Amendment rights, too.

Judges' First Amendment rights are more limited, at least when they're on the bench.  Last week, the Ohio Supreme Court handed down its decision in Disciplinary Counsel v. Gaul, involving a Cuyahoga County Common Pleas judge who declared a mistrial and recused himself after publicly accusing a defendant of intimidating a witness.  (Background on case here; discussion of oral argument here.)  The court affirms the finding of misconduct, but knocks the penalty down from a one-year month stayed suspension to six months, all stayed. 

Nothing else of note in Washington or Columbus, so let's head over to the courts of appeals...

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Prosecutorial Misconduct

One thing I've found in doing appeals is that defense lawyers aren't really bothered by an allegation that they rendered ineffective assistance at trial.  I've even had lawyers tell me how they might have screwed something up.  I've never had one ask me not to make an IAC claim, or be upset with me because I did.

On the other hand, I've found that prosecutors get really, really pissed if you claim they engaged in prosecutorial misconduct.  Which is interesting in light of the juxtaposition of two stories from yesterday.

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A snitch in time

Donald Hutchinson was a firm believer in the adage that when opportunity knocks, you answer.  Opportunity, in his case, arrived in the guise of becoming a cellmate in the Cuyahoga County Jail to David Ayers, who was to stand trial for murdering a 76-year-old woman.

The jury for Ayers trial was picked on November 22, 2000, the day before Thanksgiving.  The following Monday, the prosecution disclosed that it intended to call Hutchinson to testify that Ayers had confessed the killing to him.  That testimony played a crucial role in convicting Ayers.  It also played a crucial role in Hutchinson's life; in return for his cooperation two pending cases against him were dismissed, and not only was he not found to be a probation violator in a third case, but the probation in that case was terminated, and all fines and costs were vacated.

And on Tuesday, in Ayers v. Hudson, the 6th Circuit Court of Appeals granted Ayers' habeas petition, deciding that how Hutchinson came to testify didn't quite pass the smell test, provided some important instruction on right to counsel, ane even threw in a nugget on habeas actions.

Continue reading "A snitch in time" »

The continuing evolution of Crawford

Back in 2001, Detroit police responded to a call of a man shot at a gas station, and found Anthony Covington lying on the ground next to the door of his car, his shirt covered with blood.  The officers asked what happened, and he told them he'd been shot.  One asked who shot him, and  Covington gave them the name "Rick" and an address about six blocks away.  Covington died four hours later, but his statements to the police were used to apprehend Richard Bryant and convict him of second degree murder.  Yesterday, the US Supreme Court heard arguments on whether the Michigan Supreme Court was right in holding that Covington's statements were inadmissible because they were testimonial under Crawford v. Washington.

Continue reading "The continuing evolution of Crawford" »

What's Up in the 8th

It's ironic that with all the new means of communication at our disposal, life has become more impersonal than ever before.  Joyce Gaskins strikes back at this, claiming that her employer inflicted debilitating emotional distress upon her by leaving her a voicemail telling her she was being terminated.   The 8th shows her no love, though; in Gaskins v. Mentor Network-REM, it rejects that contention, as well as a public policy discharge claim.  But several civil plaintiffs and criminal defendants fare better.

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Case Update

On the eve of the US Supreme Court's new term, the Ohio Supreme Court finally churns out a few opinions of note.  The state statutes and rules specifically prohibit an alternate juror from sitting in on deliberations.  On two previous occasions, the Supreme Court had rejected a defendant's claim that doing so required reversal.  On both of those occasions, though, the defendant had failed to object, and so the case was analyzed for plain error, which occurs with the frequency of Dick Cheney's tender moments.  But in State v. Downour, the defendant did object; this, the court holds, shifts the burden to the State to prove that the defendant was not prejudiced, and given the secrecy of jury deliberations, good luck with that. 

Another notable holding comes in Squire, Sanders & Dempsey v. Givaudan Flavors Corp.  Not getting paid in full is a common experience for attorneys, but I've found that it's usually not worth the trouble to chase clients for the money.  Then again, I've never been owed $1.8 million, which is the amount SS&D claimed Givaudan had stiffed them.  Givaudan defended by contending that SS&D had charged them excessive fees and had been incompetent.  The main issue here was Givaudan's assertion that all its dealings with SS&D were covered by attorney-client privilege; thus, for example, SS&D couldn't hire an expert to review its billings to Givaudan to determine if they were reasonable and proper.  The 8th District had ruled that the trial court was required to hold an in camera inspection of the disputed documents to determine whether they were privileged, but the Supreme Court reverses, deciding that the common law provides a "self-protection" exception to the privilege, despite the fact that the statute makes no mention of such an exception.  The case provides an extensive and interesting romp through attorney-client privilege and work-product doctrine.  On second thought, if it was "interesting" I'd probably give it more than the paragraph here.

On to the courts of appeals...

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Friday Roundup

Drug Wars.  In just five weeks, we'll find out if California becomes the first state to legalize recreational marijuana.  Some people aren't going to be happy if they do:  as this article from The Hill (h/t to Sentencing Law & Policy) indicates, one of those people is Rep. Lamar Smith of Texas, who's fuming because the Obama administration has scaled back enforcement of laws against medical marijuana dispensaries.  Smith has called for stronger enforcement of all drug laws, and opposed the revision of the sentencing guidelines which reduced the disparity between how crack and powder cocaine were treated. 

So why should anyone care about the rantings of a representative from Texas?  Because Smith is likely to be the chairman of the House Judiciary Committee if the GOP takes over Congress in the upcoming elections, which most analysts have concluded is about a 65% probability.

Going back to the California proposition battle, the political alignments are rather fascinating.  The California Beer & Beverage Distributors have come out against the proposition, as have police groups.  The economic interests of the former group are readily discernible.  The latter?  As noted by this article,

Police forces are entitled to keep property seized as part of drug raids and the revenue stream that comes from waging the drug war has become a significant source of support for local law enforcement. Federal and state funding of the drug war is also a significant supplement to local forces' budgets.

On the flip side, the teachers and the Teamsters have come out in support of the proposition.  Why?  Because the Teamsters are trying to oganize pot growers, and the teachers want the additional revenue that could be raised by legalizing weed.

Lindsay Lohan Update.  No, this isn't turning into an online version of People magazine.  (Especially since there already is an online version of People magazine.  And don't make fun of People too much.  I was in court the other day, wasting my time -- but I repeat myself -- and grabbed a copy of InTouch, one of the many People competitors.  Apparently, InTouch's key demographic is people with ADD:  lots of pictures, stories that run two paragraphs at most.)

Where was I?  Oh, yes, further evidence of my sub-par prognosticative skills:  barely two months ago, I recounted Lindsay's most recent arrest and incarceration for alcohol and drug-related arrests, linked to a blog holding a contest to determine which of Lindsay's three mug shots was the best, and calculated that, given the pace of Lindsay's brushes with the law, the contest could be re-run "about eight months from now, this time giving contestants four options."  Oh ye of little faith.  It took Ms. Lohan a mere quarter of that time to test positive and earn another stay in jail and, as Legal Blogwatch shows, another mugshot.

Thought provoking post of the day.   From Balkinization:

I have four points I want to make today against constitutional idolatry, which is my label for our misguided tendency to blindly worship the Constitution, giving it credit for all the things we love and honor about our country.

(1) The Framers' constitution, to a large degree, represented values we should abhor or at least reject today.

(2) There are parts of the Constitution with which we are still stuck today even though we would never freely choose them and they are impossible to defend based on contemporary values.

(3) For the most part, the Constitution is irrelevant to the current political design of our nation.

(4) The rights protections we do enjoy today, the importance of which I do not minimize, are mostly a function of political and social mores, which have dramatically evolved over time and owe relatively little to courts using the Constitution to protect them.


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