November 2010 Archives
The 8th District churns out 29 decisions by Wednesday, then heads off to the buffet line to leave me to wade through them. I (and you, shortly) learn that Ivan Djukic's journey through the legal system comes to an end, John Russell gets a new beginning to his, and Johnny Garcia is yet another beneficiary of the woeful state of training in 4th Amendment procedures provided to Cleveland police officers.
After Jason Pepper's 2003 plea in Federal court to conspiracy to distribute amphetamines, the judge gave him only a 24-month prison sentence, as opposed to the 97-121 months recommended by the sentencing guidelines, because of his cooperation with the authorities and his lack of a prior criminal record. The 8th Circuit reversed that, but in the meantime, Pepper completed his sentence, married, got a job, got straight A's in college, and stayed drug free, so the trial judge again gave him 24 months, this time citing his post-sentence rehabilitation. Again, the 8th Circuit reversed, telling the judge not to consider that. On remand, a different judge gave him a 65-month sentence, and a week from today, the US Supreme Court will hear argument on whether post-sentence rehabilitation is a proper factor to consider in sentencing.
I haven't read the briefs (but if you want to, here they are), so I don't know what the law is on this, but I know what it should be. I don't like saying that, because it smacks of results-oriented decision-making, and I don't normally like it when it's obvious that a court decided the outcome it wanted to reach, then formulated the reasoning -- such as it was -- to arrive at that outcome. But I've always believed that the overriding purpose of law is to achieve a fair result, and whatever the arguments on this, Pepper has the better one. We'll see if five people who matter a hell of a lot more to Jason Pepper than I do agree.
Nothing else in D.C., and nothing of note in Columbus, so let's head over to the courts of appeals, where the 2nd District had a particularly prodigious week...
On August 28, 2004, Evelyn Rivera and her husband, Adam Pabon, saw a man beating a woman, whom they recognized as a neighbor, outside their house. Rivera called 911, and the assailant took off when the police arrived. The victim told Pabon that the guy who beat her was her former boyfriend, Luis Colon; she told the police officer who responded to the call that she had lived with him for about two years, but they'd separated six months ago.
The victim didn't show up at Colon's trial a month later for domestic violence. No matter; the court allowed the statements to Pabon and the police office as an "excited utterance."
Colon was convicted, and sentenced to 30 days in jail. Three weeks ago the 6th Circuit ended Colon's odyssey through the criminal justice system by concluding that the admission of those statements didn't violate Colon's confrontation rights under Crawford v. Washington.
Rule No. 1 for trial attorneys is: Make sure to preserve your record. Failure to object normally dooms an appeal, limiting the reviewing court to the extremely vigorous "plain error" standard. By luck or design, though, the trial attorney's failure to object in State v. Banner to the state's introduction of evidence regarding an offer to allow the defendant to take a lie detector test probably resulted in the reversal of defendant's conviction of several counts of child rape, and his sentence of 35 years to life.
The US Supreme Court comes down with its first real decision of the year in Abbott v. US. (A week earlier, in Wilson v. Corcoran, the Court had issued a brief per curiam opinion reminding federal courts that habeas relief was available only for violations of federal law, not for improper state court interpretations of state law.) Abbott was convicted of drug trafficking, and had a gun at the time of the crime, which earned him a 15-year minimum sentence as a felon in possession and a 5-year minimum under 18 USC 924(c)(1), which prohibits using or possessing a gun "in any crime of violence or drug trafficking crime." The latter statute provides that the 5-year sentence has to run consecutively "except to the extent that a greater minimum sentence is otherwise provided by [924(c) itself] or by any other provision of law." Every court has narrowly construed "any other provision of law" to mean one that "embodies all the elements of a 924(c) offense," and the Supreme Court unanimously agrees. The Court acknowledged that "Abbott and Gould [the defendant in a companion case] project a rational, less harsh, mode of sentencing. But we do not think it was the mode Congress ordered." Well, duh. Why would anyone think that Congress would prefer a "rational, less harsh mode of sentencing"?
The bright spot here is that Doc Berman, over on Sentencing Law & Policy, sifts through Abbott's entrails and argues there's some support in it for applying the new Fair Sentencing Act's provisions for crack sentencing to pending cases.
Down in Columbus, nothing other than announcements, including the dismissal of several cases for missed filing deadlines, so let's see what happened in the courts of appeals...
Talkin' about a revolution. It's been 35 years since the Justice Center opened here in Cleveland, housing both the county's common pleas court and the city's municipal courts. I've chronicled its failings before, like in this post from earlier this year. (The one about the Justice Center is the second story down.) But the Powers In Charge really outdid themselves on Wednesday.
As I mentioned in the earlier story, 9:00 AM is when it's happenin' at the JC: the masses descend upon the building for their pretrials, arraignments, traffic hearings, or whatever, where they're funneled into a line to go through a solitary metal detector at each of the two entrances. Employees and lawyers are spared this process: we simply walk past the detector and hold our ID up to a scanner, then go on our way.
Until Wednesday. I was scheduled for trial -- which, in Cuyahoga County, means that there is at least a 10% chance that it will actually be held -- but despite those daunting odds, decided to get there about 10 minutes before that. At which point I found that the scanner was closed down: now, all empl0yees and attorneys had to go through the metal detector, just like everybody else.
In the immortal words of Marisa Tomei in My Cousin Vinny, "What a fuckin' nightmare." I had to wait in line for 30 minutes to get through the detector. Several lawyers just left, secure in the knowledge that in this county, a "9:00 Pretrial" in a criminal case means "show up sometime before noon." Several people didn't take kindly to the new procedure, and the deputies actually handed out several tickets for disorderly conduct to those they felt were too strident in their complaints. The disembarkation from the Titanic after it hit the iceberg was done in a more orderly fashion than this.
And in addition to being a nightmare, it was a disaster. My client didn't get up to the courtroom until 10. It didn't matter, because the judge was in trial with another case. And that didn't matter, because three of the jurors in that case didn't get through until more than an hour after the trial was supposed to start.
This isn't going to be the way it is done from now on, we found out; this will only be instituted on a random basis. How random? Don't know; some deputies told me it would be once a week. And, of course, since it's random, you don't know which day it's going to be: you could come over to the Justice Center for your 9:00 pretrial, only to find out that the dice had come up snake eyes and you should've been there 45 minutes earlier to avoid standing in line. My guess is that a couple more "random" procedures like this, and the one after that is going to resemble the storming of the Bastille.
I suppose it could be worse. Back in 2005, the Ohio legislature passed the state's version of the PATRIOT act, and included a requirement that anyone doing business with the state had to sign a certification that they were not giving material aid to any terrorist organization. The minions at the Bellefontaine Municipal Court, apparently concerned that attorneys were working hand in glove with al Qaeda to replace the government of our Founding Fathers with an Islamic caliphate, mandated that attorneys who wanted to sign up for appointment for indigent counsel had to sign the form. Even the Supreme Court found that was a bit over the top, and granted a writ of prohibition.
In other news. Actually, I guess I shouldn't complain too loudly about what happened at the Justice Center. The new procedures adopted by the Transportation Security Administration for screening at airports -- the "full body scanner" and the more intrusive body search -- has generated a firestorm. And whereas previous firestorms would result in something like, oh... the storming of the Bastille (supra), now it just results in lots and lots of people blogging about it. Or sending out press releases; as the always entertaining LegalBlogwatch tells us, a group called "Americans for Truth About Homosexuality" -- and I can't think of anything I am more desperate to learn the truth about -- has scoffed at Homeland Security Chief Janet Napolitano's assurance that the patdowns, which will now have agents venturing into previously forbidden areas, such as the genitals and breasts, will be performed only by "same-gender" personnel. What if, the ATAH points out, the agent is gay? The ignominy of having to stand in line for an hour, take off your shoes and belt, dump your keys and change into a bin, would only be deepened by the horrr of realizing that the burly agent working his fingers inexorably toward the family jewels is deriving some secret pleasure from it.
We tell jurors that they can't do "independent" research: look up stuff on the Internet, go the scene of the crime, read newspaper accounts about what happened. Well, if you've got jurors who recognize this guy's picture, or have the Who's "Won't Get Fooled Again" as the ringtone on their cellphones, they might need some special instructions, too.
The Ohio State Bar Association certainly thinks so; back in May they came up with a proposed jury instruction intended to curb the influence of legal and forensic TV shows. Ominously entitled "Warning on Outside Influence," it cautions that "misleading outside influences" include "popular TV shows" like Law and Order or Boston Legal, as well as "shows such as CSI and NCIS, which present the use of scientific procedures to resolve criminal investigations." Noting that these shows "are not subject to the rules of evidence and legal safeguards that apply in this courtroom, and are works of fiction that present unrealistic situations for dramatic effect," jurors are told to " put aside anything you think you know about the legal system that you saw on TV."
This is supposed to counter what's been termed the "CSI Effect": supposedly, such shows have indoctrinated jurors to believe that every prosecution, no matter how sundry, must result in a host of forensic scientists marching to the stand, and if that doesn't happen, the defendant should be acquitted.
What's been termed "the CSI Effect" is hardly the first time that entertainment has influenced jurors. The "Perry Mason Syndrome" was the name given to jurors' reluctance to acquit unless the defense attorney got the state's key witness to confess in cross-examination. (The show had another effect: lawyers weren't allowed to approach witnesses at that time, but to get both Mason and the witness in the same frame, directors had Mason walk over and lean on the witness rail. Actual jurors began to expect attorneys to do the same thing, and thought they'd done something wrong when they didn't.) And "Oprahization" was the name given by Attorney General Dan Lungren to the tendence of jurors to fail to hold the defendant responsible for his crime because of his own victimization, such as childhood abuse.
There's an abundance of anecdotal evidence to support the existence of the effect, and the prosecutor of Maricopa County, which includes Phoenix, certainly thinks it's real: in an article he wrote for the Yale Law Journal, he claimed that a survey he did showed 38% of his prosecutors believed they'd lost at least one case because of a lack of forensic evidence, even when they thought the other evidence was sufficient to convict, and that
in about 40% of these prosecutors' cases, jurors have asked questions about evidence like 'mitochondrial DNA,' 'latent prints,' 'trace evidence,' or 'ballistics'--even when these terms were not used at trial.
Reliance on anecdotal evidence, especially that supplied by adversarial participants in a trial, is problematic; blaming a loss on a factor over which you have no control is a standard rationalization process in virtually any contest. And the unreliability of recollection in general was borne out by one study, where the author quizzed assistant district attorneys at a seminar about whether they'd suffered a "CSI effect" -- a jury "wrongfully acquitting" where there was proof beyond a reasonable doubt, but lack of forensic evidence -- and asking them to identify the case. He'd intended to then go back and research the individual cases for an alternate explanation. A problem: 19 of the 20 cases identified by prosecutors had resulted in a conviction. The author then conducted a series of mock trials to determine whether there was any measurable difference in acquittal rates, or reliability on forensic evidence, in CSI watchers v. non-watchers. Like this study and this one, the author couldn't detect any. To be sure, some studies, like this one, suggest that there may be an overall trend among jurors, not limited to just CSI watchers, toward expecting a greater degree of forensic evidence. But studies haven't shown a greater unwillingness to convict unless that forensic evidence is provided; indeed, if there was such a tendency, it would have shown up in increased acquittal rates over the past several years, and that hasn't happened.
In fact, it may be that the effect cancels itself out: for each juror who demands more scientific evidence in return for his guilty verdict, there's another who believes that scientific evidence is infallible. After all, when's the last time you heard Horatio admit, "Jeez, we screwed the pooch on this one, huh, guys"? Tell a jury that the defendant's fingerprints were found in a burglarized apartment, it's Game Over. As Brandon Mayfield can tell you, that's not the case: he spent two weeks in jail because FBI fingerprint "experts" mistakenly identified his prints as being on a plastic bag containing detonator caps found at the scene of the 2004 Madrid bombings. The central tenet of fingerprint identification -- that no two people have the same fingerprints -- has never been validated, nor has the practice of declaring a match if there are eight to sixteen points of similarity (out of 35 to 50 possible) between two sets. In fact, as one commentator put it, the verifiability of fingerprint identification rests on the circular logic that "it is verifiable because [fingerprint technicians] use it." Similar questions have been raised about the accuracy of ballistics, hair analysis, and hand-writing identification. In fact, a large reason for the Supreme Court's decision last year in Melendez-Diaz v. Massachusetts, holding that scientific evidence was testimonial under Crawford, and therefore required confrontation of the person who actually performed the tests, was an amicus brief by the National Innocence Project detailing the inaccuracies of supposedly "reliable" forensic evidence.
Still, if the OSBA thinks it's necessary to tell impressionable Ohio jurors not to believe everything they see on TV, I don't have a problem with it. As long as they're also told not to expect miracles when I cross-examine the state's key witness.
Here are the facts in last week's 8th District decision in Middleburg Heights v. Bunt: Bunt and his wife met Kellie Greene, the mother of K.M., a 14-year-old boy, as a result of K.M. and Bunt's stepson being in the same bowling league. Greene later confided in the Bunts that K.M. was having problems in school, especially with assignments. Bunt offered to help draw up a computer program that would help keep track of them, and would work with K.M. to do that. After a meeting, the four agreed on that plan. In her statement to police, Greene acknowledged that she had sent K.M. to Bunt for "discipline," and that's pretty much what happened: Bunt paddled K.M. about 60 times, leaving him "sore and in tears." At trial, K.M. testified that Bunt offered him a choice: "use a paddle and keep my underwear on, or bare hand, but it would be with my underwear off." He hadn't mentioned that in his statement to the police.
On that basis, the jury convicted Bunt of assault and sexual imposition, the latter offense, despite being a third degree misdemeanor, requiring him to register as a sex offender for the next 15 years.
Convinced of Bunts' guilt beyond a reasonable doubt? Probably not, especially about the sexual imposition charge. But there's more.
Sometimes, I think the 8th District's decisions give a better glimpse of life in Cleveland than can be found in a travel guide. And lest you think that Cleveland doesn't merit mention in a travel guide, Frommer's doesn't share that view; it breathlessly informs us that "this underrated city's abundance of locally owned restaurants is also helping Cleveland burnish its reputation as the 'epicenter of the Midwest food scene,' in the words of the Chicago Tribune." Indeed, back in 2007, Cleveland's own Michael Symon won the Food Network's "Next Iron Chef" contest.
In State v. Gillenwater, we learn that Steve Moree also possesses extraordinary culinary skills: the police claim he's "the best cook of crack cocaine in Cleveland," with people coming from miles around to have him cook their cocaine.
The big oral argument this past week in DC was AT&T v. Concepcion, which involves the question of whether a California court ruling that a provision in AT&T's cell phone contract was unconscionable because it barred class actions violated Federal arbitration law. I'm somewhat torn about this; on the one hand, class actions are among the most abused forms of litigation. On the other, businesses have inserted arbitration clauses into consumer and employment contracts with increasing frequency -- as this Hooters waitress found out -- and such clauses give them inordinate ability to avoid the consequences of their misdeeds: you're much more likely to get a lawsuit if you steal $3,000,000 from one person than if you steal $10 from 300,000, at least if the 300,000 have to file separate lawsuits.
Down in Columbus, the talk was political, not legal. In the election for Chief Justice, Maureen O'Connor trounced Eric Brown, whom Governor Strickland had appointed to the position after Tom Moyer's death this past summer. That leaves O'Connor's seat vacant, and Strickland, despite his lame-duck status -- he was another victim of the Republican onslaught two weeks ago -- could appoint somebody to that seat. The thinking is that he might want to fill it with somebody who has a better chance of retaining it than Brown, who lost by a 2-1 margin. Like soon-to-be former Attorney General Richard Cordray, who performed admirably by losing by less than 2% in his race for re-election. (Which is sort of like being last man standing at the Alamo.) Another thought, though, is why bother: Democrats last won a race for Supreme Court justice in 2000, and in the ten elections since then, only once has a Republican candidate failed to win by a margin of 10% or more, the customary definition of a landslide.
On to the courts of appeals...
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