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What's Up in the 8th

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.

In State v. Garcia, the police conduct a traffic stop, the driver and passenger get out of the car, the driver hands his license to one cop, then runs away.  The officers stop Garcia before he can flee, then pat him down, and feel a "bulky bulge" in his pocket, which turns out to be marijuana.  Now, police officers in other jurisdictions get training on what is known as the "plain feel" doctrine under Minnesota v. Dickerson:  that when conducting a lawful Terry patdown, an officer may seize contraband when its incriminating nature is immediately apparent through the officer's sense of touch.  The officer here is blissfully unaware of the entire doctrine:  she testifies only as whether she believed the bulge could have been a weapon, coming down on both sides of that issue.  That was her testimony at trial, by the way; the defense attorney never filed a motion to suppress, and the failure to do so, the court holds, was ineffective assistance of counsel, necessitating reversal.

While Garcia goes free to run away from the police on another day, Timothy Brio isn't as fortunate.  He's convicted of fleeing the scene of an accident, and raises an interesting point about the statute, RC 4549.02.  Normally a first degree misdemeanor, it becomes a third degree felony if "the violation results in the death of a person."  Biro argues that this means the violation -- leaving the scene -- has to result in the death of the person, rather than the accident itself.  In State v. Biro, the court notes that it rejected this precise argument three years ago in State v. Osborne, where it engaged in a convoluted discussion about the semantical difference between "causes" and "results."  Fortunately, we will be spared future such arguments; the legislature has since amended the statute to specify that the offense becomes a felony if the accident causes the death.  So Biro's out of luck?  No, he simply exhausted his supply at trial:  the jury acquitted him of aggravated vehicular homicide and vehicular manslaughter, and the judge gave him the minimum sentence -- one year of community control sanctions -- for his conviction on the third degree felony.

The defendant in State v. Russell is even more fortunate, as the court reverses the denial of his motion for new trial.  Russell was convicted in 2006 of eight counts of gross sexual imposition, which were alleged to have taken place on non-specified dates over the course of year.  Russell's lawyers made three public record requests of the Lakewood Police Department, and finally were provided with notes of the victim, Russell's daughter,  as to specific dates, plus several poems she'd written to him, items which the prosecutor had never provided.

Everybody on the panel agrees that the prosecutor wasn't intentionally hiding evidence, but everybody also agrees that doesn't matter: 

It is not good enough that the prosecution argues that it did not have access to the police files concerning Russell in this situation.  The prosecution is held responsible for knowing what is in the police file.

In denying the motion for new trial, the judge found that the evidence wasn't newly discovered, since "it appears from the transcripts and trial testimony that defense counsel knew of or had access to the alleged newly discovered evidence," and also determined that the new evidence "is not material or likely to change the result" of the trial.  The appellate court makes short shrift of the first claim, and justifiably so:  it's hard to see how the defense team "knew of or had access" to the evidence when the prosecution claims that it didn't.  And the court notes that the new evidence pinpoints dates on which the incidents were alleged to have occurred, and that Russell has evidence that he was elsewhere at the time, or did not have visitation with his daughter on those dates.

The test here is whether the newly discovered evidence is material, which means that "there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different."  That's been refined in subsequent cases to mean that the evidence is material if it's sufficient "to undermine confidence in the outcome."  I'd have no trouble agreeing with the court that the evidence met this standard, except for one thing:  this was a bench trial.  Normally, a judge reviewing a motion for new trial on the basis of Brady violations would have to guess what a jury would have done if it had all the evidence, but here that's not necessary:  the judge was the factfinder, and he was certainly in a position to determine, "if I'd known this, would I have still found the defendant guilty?"  I'm guessing, but I think if the judge had found that the evidence was newly discovered -- his conclusion that it wasn't is simply unsupportable -- the court might have found differently on the materiality issue.  In short, the judge's finding on the first issue "undermined the confidence" of the appellate court as to his finding on the second.

Finally, every lawyer learns by his third year of practice that when people say, "It's not the money, it's the principle," it's the money.  And on those rare occasions when it is the principle, it's definitely not worth the money.  That is the moral lesson of the 8th's decision last week in Friedland v. Djukic.  Djukic claimed heart and neck problems stemmed from his 2001 auto accident -- claims which, alas, found no support among the numerous doctors who treated him -- and spurned a $38,000 offer before trial, only to have the jury give him half that amount.  Djukic refused to sign the insurance check submitted for the award, so his lawyer sued him for fees.  Unfortunately, he'd forgotten to have Djukic sign a written fee agreement, as required by RC 4705.15.  No matter; Djukic forgot to argue it, and raises it for the first time on appeal.  Getting a criminal case reversed on plain error is a daunting task, in a civil case, a virtually impossible one, granted only where the error "if permitted, would have a material adverse effect on the character and public confidence in judicial proceedings."  So after all that, Friedland gets his $7,600.  And I'm betting if he had to do it over again...


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