Keeping up with the Joneses.  I mentioned on Monday that in the past five years Ohio’s executed more people than all other non-Southern states combined, but it looks like other states might be catching up.  Like California, for instance, which has no fewer than 700 people languishing on death row, including seven who have exhausted all state and federal appeals.  That wouldn’t include John Davenport, who’s been on death row since 1981; he still has stuff going on in Federal court.  But it would include Albert Greenwood Brown, Jr., who’s been there since 1982.   He was supposed to have been executed in September, in what would have been California’s first execution in five years, but it had to be postponed.

Why?  Because the California Department of Correction’s only dose of lethal-injection drug passed its expiration date. 

Speaking of the death penalty, a new poll showed that 83% of the American public support the death penalty.  And that’s just for murder; 62% would use it to punish rape, and 51% for kidnapping.  Most people draw the line at robbery, though; only 40% would support that.  Thirty-nine percent think it acts as a deterrent, but 35% don’t believe that it does.  And 81% believe that innocent people have been executed.

Make of all that what you will.

March of Technology, Chapter 34.  A couple of months back, I decided I was too dumb to use a smartphone.  I’d gotten the Droid Incredible, and in two weeks concluded that I didn’t feel like putting in the Incredible amount of effort I’d have to in order to make full use of its features, most of which I didn’t need anyway. 

Lauren Rosenberg probably should’ve come to the same conclusion.  She relied on her BlackBerry’s Google Maps application to get from one place to another in Utah, and it told her to use Deer Valley Drive.  She was walking, alas, and the directions didn’t advise her that Deer Valley Drive has no sidewalks.  She was hit by a car, and like any red-blooded American, promptly sued.  And not just the driver of the car; she sued Google, too.

I’ve used various mapping devices over the years, and have found them to be something less than error-free.  Microsoft’s directions had me puzzled on one vacation trip, until I realized that the town they had as being north of Ft. Knox was actually south of it.  Mapquest told me to turn left out of the Phoenix airport instead of right, putting me in an area of town substantially different from the scenic park I had anticipated going to.  And, of course, Google can get a little bit silly, too; a few years back, if you asked it for directions from New York to London, Plot Point 23 was “Swim across the Atlantic Ocean – 3,462 mi.” 

That, coupled with the fact that if any condition might be deemed “open and obvious,” that you’re walking in a road instead of on a sidewalk would qualify, renders Rosenberg’s suit something less than a slam dunk.  She might be helped by what this article notes:

Google Maps warns users about walking directions on its version for computers, saying that “Walking directions are in beta. Use caution — This route may be missing sidewalks or pedestrian paths.” However, the mobile version of Google Maps does not come with the warning.

Reasonable doubt explained… Maybe.  Here’s one making the rounds in the legal blogosphere.

Here I have a couple of urns. The one on the left contains 70 red balls and 30 black. The one on the right contains 30 red and 70 black.

While you weren’t looking, I reached into one of these urns and randomly drew out a dozen balls. As you can see, 4 of them were red and 8 were black.

Here are three questions that I think you ought to be able to answer if you want to be in the business of assessing evidence:

If you had to guess, which urn would you guess I drew from?

What’s your estimate of the odds that you’re right?

Do you think you’re right beyond a reasonable doubt?

The correct answer is that there’s a 98% probability that the balls were drawn from the right urn.

Now, the question is:  is 98% probability equivalent to proof beyond a reasonable doubt?

As I said, you can find a lot of debate on this in the legal blogs, and one of the things I came across is that empirical research indicates that jurors use somewhere between 70% and 74% as a cutoff figure.  Food for thought.

Two years ago, the legislature passed the New, Improved version of the Castle Doctrine.  Unlike the old Economy Size Castle Doctrine, which merely held that the duty to retreat before claiming self-defense did not apply to a person in his own home, this version actually shifted the burden of proof from the defendant to the prosecution when the self-defense claim arose in the context of a person lawfully in a residence or vehicle vending off an intruder.

When I first discussed this, I predicted that this was not going to result in much litigation, given the fact that, in this climate, shooting an intruder in your home would more likely result in congratulation, not indictment.  So it’s not surprising that, over two years after the passage of RC 2901.05(B), my BFF Lexis shows that there are a grand total of four cases on the statute.  I don’t know whether there are going to be more, but I hope so, because a couple  of them show there are some issues to be addressed, especially with jury instructions. (keep reading…)

One of the things I did when I was on vacation was reread Tom Wolfe’s Bonfire of the Vanities.  It’s a great book, and one of my favorite parts is where the main character, a bond trader, tries to explain to his six-year old daughter what he does for a living.  I had a similar experience a long time ago, when my daughter, then about the same age, asked, “Daddy, what do criminal lawyers do?”

I smiled, pulled her up on my lap, and said, “Well, mostly damage control.” (keep reading…)

I won an appeal last week, but there were things that were even more absurd in the 8th District’s body of work.  For instance… (keep reading…)

Nothing new in Columbus, except, buried in the announcements for November 1, one noting in State v. Cornwell that the court is making certain orders to facilitate its “timely consideration of any matters relating to the execution of appellant’s sentence.”  That’s a somewhat euphemistic phrasing; what we’re really talking about is the execution of the appellant, scheduled for November 16.  For those of you keeping score at home, in the past five years 229 people have been executed in the United States.  Ohio has killed 22 of them.  No other non-Southern state has executed more than four.

There was one decision I skipped over from the previous week, Doe v. Ronan, in which the court upheld a 2007 law making anyone who’d ever been convicted of a drug trafficking ineligible for any position with a school district.  The employee in that case had worked for the Cincinnati school board since 1997, until the background check mandated by the new law discovered his 1976 trafficking conviction.  One is tempted to suggest that the legislature could not have intended so absurd a result as to cause a person to lose his job — a job, it might be noted, in which the employee had no contact with children — because of something that happened 34 years earlier.  But of course, it did intend so absurd a result; a prior version of the law allowed a person to demonstrate that he was rehabilitated, but this version did not.  This is the result of the drug hysteria:  legislators don’t give a damn about ruining people’s lives for no reason, as long as they can’t be accused of being “soft on crime.”

Down in DC, no decisions, most of the talk centering on the argument in Schwarzenegger v. EMA, which tests the constitutionality of California’s law prohibiting sales of violent video games to minors.  Hard to say which was the highlight of the argument:  the description of some of the games being offered (in one, you hit schoolgirls over the head with a shovel, and then decapitate them; in another, you pour gasoline over people, set them on fire, and then urinate on them) or Alito’s quip that Scalia wanted to know “what James Madison thought of video games.”  Oh, and if your fantasy football season has gone into the toilet — getting Randy Moss with that third-round pick didn’t turn out to be the steal you thought it was, did it? – you might want to check out FantasySCOTUS, which, this article explains, is an online game to predict the outcome of Supreme Court cases.

On to the courts of appeals… (keep reading…)

Election Returns.  “Follow the money” is a time-tested aphorism in politics, but you wouldn’t think it would apply to California’s referendum legalizing marijuana, which went down to defeat on Tuesday by an 8-point margin.  While reading through some articles on the reasons for the measure’s defeat, I came across this:

Preliminary election returns showed Prop 19 winning in 11 of 58 counties, with the strongest support in San Francisco and Santa Cruz.

But in a sign of what a tough sell it was, Prop 19 lost in the state’s vaunted marijuana-growing region known as the “Emerald Triangle” of Humboldt, Mendocino and Trinity counties.

Many in the region feared the system they created would be taken over by corporations or undercut a cornerstone of the local economies by sending pot prices plunging.

More parochially, the big news from here was the defeat of Bridget McCafferty for a Common Pleas judgeship.  McCafferty was one of two judges indicted in the Federal government’s two-year investigation into county government corruption, but despite that, and consistently poor ratings by bar associations, was favored to win a third term.  Why?  Well, check the roster of Cuyahoga County judges and see how many non-ethnic names you can find.  (Actually, the number of Russos has fallen.  There used to be six:  in addition to the four in the general division, there was one in Domestic Relations, and there’s still one in the Juvenile Division.)

But it doesn’t necessarily take getting indicted for a judge to get voted out of office.  Last year the Iowa Supreme Court unanimously held that the state’s ban on gay marriage was unconstitutional.  Iowa has a merit selection/retention method for supreme court justices:  instead of voting for opposing candidates, the public simply votes on whether to retain them.  Since the system was instituted in 1962, no justice had ever lost a retention vote.  On Tuesday, all three justices up for retention did.

Take me out to the ballgame.  The recession hasn’t spared many industries, but it’s been especially hard on the legal profession:  the number of legal jobs has fallen by 7.8% since 2007, compared to decline of 5.4% in total jobs.  And while law school enrollment has increased — the number of people taking the LSAT has climbed over 20% in the last three years — graduates are finding a job market that simply does not give them the $65,000 salary that makes law school a good investment, given the $71,000 in debt that the average public law school graduate has incurred.  (For private law schools, it’s $20,000 more.)  And while law schools reported that employment for the 2009 class was 88.3%, a quarter of those jobs were temporary, and another ten percent only part-time.  The employment prospects are so grim that one 3L at Boston College has written a letter to the dean proposing a deal:  he’ll drop out of law school if the school will refund his tuition.  To him, it’s a win-win:

On the one hand, I will be free to return to the teaching career I left to come here. I’ll be able to provide for my family without the crushing weight of my law school loans. On the other hand, this will help BC Law go up in the rankings, since you will not have to report my unemployment at graduation to US News.

But even a law job takes second place to the National Pastime, at least for Boris Briskin, who, Findlaw tells us, quit his job at a Los Angeles firm when they wouldn’t give him time off to attend the playoff games of his beloved Texas Rangers.

In fact, the Rangers, despite their historically lackluster performance — before this year, their 38 years of existence hadn’t produced a single playoff game victory — apparently inspire members of the legal profession, such as Darrell W. Cook, who sought a continuance of a pretrial so he could attend the first Series game in San Francisco.  The motion, which you can read here, is a riot, especially the footnotes, the best of which, regarding the Rangers’ vanquishing of the Yankees in the League Championship Series, is this one:

It should be pointed out that A Rod [Alex Rodriguez] a/k/a A Fraud took a called third strike to end the series and secure the pennant for the Rangers.  It has no significance to this Motion other than the fact that Darrell likes to point it out as much as possible.

Alas, the Rangers lost the Series in five games to the San Francisco Giants.  Cook fared better in the deal:  at least his motion was granted.

Style tips.  Not only do I do this blog, but I also write a weekly summary of all the criminal decisions of the 8th District for the listservs of the Ohio Association of Criminal Defense Attorneys and the Cuyahoga Criminal Defense Lawyer’s Association.  That means I read an awful lot of cases.

The downside of that is…  I read an awful lot of cases.  Just what a downside was reinforced by an article I came across on the miserable quality of legal writing, and the reasons for it.  Especially resonant with me was Reason No. 4:  law students (and lawyers) read lots of judicial opinions.

Let us remember that the judicial opinions in our casebooks were not chosen for their writing style; they were chosen for their content. But many judicial opinions are poorly written, and most are mediocre at best. One commentator has said that lawyers, in their reading, are exposed to “the largest body of poorly written literature ever created by the human race.”

Anybody want to give me an amen?

I’ve commented before that much of the defense bar’s protestation of the denial of their clients’ right to speedy trial is so much bluster.  Unless the defendant is in jail, he almost invariably benefits from delay:  witnesses die, move, or forget, and that makes it harder to prove the case against him.  There’s one problem with that analysis:  delay also gives him more time to screw up. (keep reading…)

I’ve said on numerous occasions that the 8th District is the most 4th-Amendment friendly in the state, if not the country.  State v. Morgan seems to be the latest effort on their part to prove I’m wrong. (keep reading…)

And here you are, all bright-eyed and eager to read about the 86 decisions the 8th District handed down while I was lolling around on the beach in a Mai Tai-induced alcoholic stupor.  (Hat tip to the bartender at the Hard Rock Cafe in Lahaina:  yes, a Hurricane is better than a Mai Tai.  And, if you’re reading this — and why wouldn’t you be? — had you been more intent on getting me my bill instead of chatting up the hot blonde, you might have been more amply rewarded for your advice.  Hope things worked out with the blonde.)

Well, bad news for the bartender, bad news for you:  we’re not going to go through all 86 decisions.  But there are five which merit attention.  We’ll play my version of “good court, bad court,” today highlighting four decisions which the court got right, and relegating the clunker to tomorrow’s discussion. (keep reading…)

An appellate court, especially a supreme court, has two basic functions:  to issue decisions which articulate and clarify the law that is to be applied by the lower courts, and to act in a supervisory role, smacking down the lower courts when they get out of line.  The latter happened last week in State v. Dean, where, despite “substantial evidence” of the defendant’s guilt, the Supreme Court reversed his conviction and death sentence because of the trial judge’s manifest bias.  The defense requested a hearing on the state’s refusal to disclose the name of a witness, and the judge had upheld the prosecutor’s position.  There’s case law which holds that a judge who holds such a hearing shouldn’t be the one to try the case, so the defense moved to disqualify him.  The judge took this badly, believing it an unethical attempt to force him off the case, and spent the remainder of the trial reminding the defense attorneys that he’d deal with their perfidy after the conclusion of the trial.  They found this intimidating to the point where they believed they couldn’t represent their client fairly, and so did the Supreme Court.  The opinion’s worth a read, although there aren’t any real rules of law to be divined.  That’s not the point, though; the point is that where the Supreme Court unanimously vacates a death sentence and grants a new trial, you know the trial judge screwed up something fierce.

Down in DC, the only decision seems as though it could serve as the basis for a Monty Python skit:  the court vacates a stay of execution in a death penalty case.  The basis for the stay?  The defendant had argued that the drugs to be used in his execution had been imported from a foreign source, and therefore might be unsafe.  Read that sentence again, and then tell me that irony is dead.

In my two-week hiatus, the courts of appeals handed down 288 decisions.  I’ve carefully read every one of them — sure, I have — and normally I’d go right to the highlights.  One of them, though, the 11th District’s decision in State v. Jordan, deserves special mention.  Ever since the US Supreme Court ruled in Oregon v. Ice that the 6th Amendment doesn’t prohibit judicial factfinding before the imposition of consecutive sentences, defendants have argued that the decision implicitly overrules the Ohio Supreme Court’s decision to the contrary in State v. Foster.  The appellate courts have uniformly rejected this argument, holding that it’s up to the Ohio Supreme Court to reconcile the two cases.  (The issue’s pending before the court; discussion of the oral argument 6 weeks ago here.) 

In Jordan, though, the 11th notes that the Ohio legislature re-enacted the section requiring judicial fact-finding on April 9, 2009, some three months after Ice came down, that Ice makes the statute constitutional, regardless of what Foster says, and that therefore a court wishing to impose to impose consecutive sentences after that date must make the required findings.

Highlights from the rest of the cases… (keep reading…)