December 2010 Archives
Right now, I'm off earning a little extra money over the holidays. See you back here on January 3.
Story of the week. Told to me the other day by one judge, about another former Common Pleas Judge. The latter, affectionately known to the bench and bar as the original Ohio Legal Blank, was in his first year or two on the bench, and was working the arraignment room. Normally, that isn't mentally challenging: all you have to do is listen to the attorney waive the reading of the indictment and enter a plea of not guilty on behalf of his client, listen to someone read out the name of the judge the computer has assigned to hear the case, and follow the bond commissioner's recommendation in setting or continuing the bond.
But a hitch: every now and then, someone would want to plead guilty in the arraignment room, and that's what happened on this occasion. Unfortunately, the judge didn't have his plea "cheat sheet" with him, and it quickly became obvious that he was lost. "How... uh... how old are you? Did you go to school? Ummmm... Can you, uh, read and write?" In an effort to be helpful, the bond commissioner stage-whispered the next part of the plea colloquy: "Are you under the influence of alcohol or drugs?"
At which point the judge turned to him and said, petulantly, "No, Bob, I'm not!"
Beefcake alert (no pun intended). There are numerous reasons why I will not be selected as the Sexiest Male Vegetarian Over 50 by PETA, one of them being that I'd take the gas pipe before making tofu and soy milk staples of my diet. As Legal Blogwatch tells us, Robert Lombardo, a Rhode Island lawyer, did win just that award. His resume includes not only an aversion to any animal-based products -- he's not just a vegetarian, but a vegan -- but also previous stints as a fashion model and "two years as in house counsel for a small internet company that produced adult entertainment." Hmmm. That last gig strikes me as slightly more appealing than sitting around while some assistant prosecutor waits in line for an hour so her supervisor can decide whether to let my client plead to a 5th degree felony instead of a 4th degree. I could easily see myself ensconced in a Barcalounger on my client's set, gobbling down my Mammoth Burger® while supervising the latest "production" so I can render advice, between bites, of how to ensure that a scene has sufficient social value to avoid an obscenity prosecution.
Any, according to the story by a local station, Lombardo's victory means he gets "a five-night trip for two to a vegetarian and ecologically-oriented resort in Guatemala."
Which reminds me of the joke, "...and second prize is ten days in Guatemala..."
Only when they pry the Oreos out of my cold, dead hands. Speaking of food, on Monday, President Obama signed the reauthorization of the federal nutrition program, which gives money to local schools for lunches, and in some cases breakfasts. This year's version included not only more money, but standards for the nutritional value of food that schools are allowed to serve. The bill hasn't engendered much opposition -- by titling it the "Healthy Hunger-Free Kids Act," Congress pretty much ensured that grousing about it would be like protesting passage of a resolution encouraging Americans to give puppies a good home -- but some concerns are being expressed about the bill's scope: not only does it pertain to food served in school cafeterias or in vending machines, but to any food served on school premises when school is in session.
Any food? That's right: we may just have seen the death knell sound for that long-time public school institution, the bake sale fundraiser. At the urging of public health groups, language was included in the bill encouraging the Secretary of Agriculture to allow bake sales only if they're infrequent. In fact, the language is broad enough that the Secretary could ban them altogether, but SoA Tom Vilsack has said that he doesn't intend to do so. And if there's one thing we've learned, it's that when somebody in government says he is or isn't going to do something, you can take that to the bank.
Of course, all this is light years behind the more progressive cities, like New York, which, as this article notes, effectively banned bake sales in October of 2009. The city relented somewhat in February, allowing parents groups to have one such sale per month, and easing the restrictions on what could be sold. Well, maybe "easing" isn't the word: a food item must meet eleven criteria to get on the approved list. And no home-made stuff at all, since "'it's impossible to know what the content is, or what the portion size is,' said Kathleen Grimm, the deputy chancellor for infrastructure and portfolio planning, who oversees the regulation." "Chancellor"? Somehow, I think they could have chosen an official with a less fearsomely Teutonic title to be the spokesperson on this issue.
Although she may have a point. The picture accompanying the article shows a table laden with a bevy of enticing snacks, three of which are labeled: "Seven Layer Cookie Bars," "S'mores Brownies," and -- I swear to God I am not making this up, look at the picture yourself if you don't believe me -- "Bacon Chocolate Chip Cookies."
Holiday scheduling. As usual, The Briefcase will be on hiatus for the holidays. I'll be back here on January 3 with the dish on all the latest decisions. And since the appellate courts generally go on hiatus at the same time, I may have to do some digging to come up with something then. Enjoy your holiday.
Lost in all the hullabaloo over the Supreme Court's acceptance of certiorari last week in the Wal-Mart class action suit was the 8th District's decision in Lycan v. City of Cleveland, in which the 8th District reverses the trial court's denial of class certification in a lawsuit against the city's traffic cameras.
On September 22, 1993, Archie Dixon and Tim Hoffner beat Christopher Hammer, stole his wallet and car, then drove him to a remote area and buried him alive. Dixon sold the car, which was a mistake: the police located it and traced the transaction back to him. When Dixon came to an impound the lot to retrieve a friend's car, he was met by detectives who gave him Miranda warnings and said they wanted to talk to him. He told them he wanted to speak with an attorney.
Dixon was arrested a week later on a forgery case, and questioned at the police station for four hours; he made incriminating statements about the forgery, but denied any knowledge of Hammer's disappearance. The police didn't give Miranda warnings on this occasion, deliberately so: they'd concluded that if they did, Dixon would ask for a lawyer. One of the detectives told Dixon that if he did have anything to do with Hammer's death, now was the time to say so, before Hoffner, whom the police also suspected, cut a deal: "It's kind of like a bus is leaving. The first one that gets on is the only one that gets on."
Right after that, the detectives learned that Hammer's body had been found, and went in for another shot at Dixon. He volunteered that he'd heard the body had been found, and had talked to his lawyer, who told him to tell the police what happened. He did, and was ultimately convicted of aggravated murder. The only bus he got on was the one which transported him to death row.
Last week, in Dixon v. Houk, the 6th Circuit granted habeas relief to Dixon, finding that the police were a tad too clever in their interrogation techniques.
When is a school a school? When is a citizen informant not anonymous? When does an offense involve a minor? These and other metaphysical inquiries are answered by the 8th District's decisions last week.
Nothing from SCOTUS this week, and nothing down in Columbus, either, not even the weekly beatdown of miscreant attorneys in disciplinary cases. In fact, the news there was political, not legal: outgoing Gov. Strickland appointed his running mate, Yvette McGee Brown, to the position on the Supreme Court being vacated by present Justice Maureen O'Connor, who won election to the Chief's spot. Justices normally have six-year terms, but Brown will have to win two elections to get one: the law requires that appointed justices run in the next scheduled election, and if she wins that one, she has to run again in 2014 when the term for that seat expires.
And it's pretty slim pickings from the appellate courts this week...
Expanding the blog roll... or not. Andy Warhol is said to have remarked that, in the future, everybody will be famous for fifteen minutes. (A decent argument could be mustered that the remark represented Andy's fifteen minutes. Yeah, I know, there were the soup cans and the Marilyn Monroe picture, but still...) Nowadays, it seems likely that in the future, everybody will have their own talk show or reality show. Or that every lawyer will have his own blog. The people at Inter Alia keep track of all that, featuring a Blawg (combination of law and blog) of the Day. To the best of my knowledge, Yours Truly hasn't made the list, but after things like the Pain Pump Law Blog and the RLUIPA Blog, the latter of which features discussions of the Religious Land Use and Institutionalized Persons Act, I can't be far behind, can I?
Actually, after I wrote that paragraph, I used the search feature on Inter Alia and found that they'd mentioned me, way back in May of 2007. Which reminds me, on May 16, 2011, unless I get hit by a bus or win the lottery and retire to a condo on Maui, I'll be celebrating my 5th-year Blogiversary. It's not too early to start thinking of something nice to get me.
By the way, if you're like me, you read that thing about the RLUIPA Blog and said, "What the hell does religious land use have to do with institutionalized persons?"
Thanks for the mammaries. In an effort to expand this blog's target demographic to males in the 13-16 age range, we bring you the story of Serena Kozakura, a Japanese pin-up model who was convicted of property destruction for supposedly kicking the door of her former boyfriend's room and crawling through the hole to confront him because he was with another woman. The judge tossed the case, finding "reasonable doubt" in the boyfriend's account after Serena's attorneys proved that her 44-inch bust would have made it impossible for her to fit through the hole in the door. Details (and pictures) here.
A cautionary tale, though. You start by looking at pictures of Serena Kozakura's (clothed) breasts, and next thing you know, you've stolen over $83,000 from your employer to pay for pornography, including some $4,000 in charges for Comcast's adult movie channel. What's even worse, as Jonathan Turley tells us, is that your employer is St. John the Baptist Church, and you're its pastor.
Lookin' like a fool with his pants on the ground. The Columbus Dispatch relates the sad tale of a would-be bank robber whose efforts were foiled by his sartorial decision to prize form over function. He ordered the teller to put money into a bag, and she did, but also slipped in a red dye packet. The Dispatch relates the sad end to this saga:
Impeded by his sagging pants, the robber shuffled out the door, Trombitas said, and the dye pack then exploded into a cloud of red smoke. The robber dropped the bag and fled.
I'm not sure the picture at right makes a good "wanted" poster, but it should certainly qualify him as an honorary plumber.
Although this robber escaped, Khory Gagner wasn't as fortunate. As this story relates, he broke into a sports bar and started a fire when he tried to cook some snacks, all while the family which owned the bar was watching this on real-time video surveillance. They went to the bar to apprehend him, which didn't prove difficult: "His pants were clear down around his knees, so he couldn't run very well," noted the person who caught him.
And Turley again points us to a story of another criminal whose fashion choices proved even more disastrous. After breaking into an apartment to rob it and slaughtering three members of a New York City family, Hector Quinones' attempts to kill another were thwarted when he "tripped over his low-slung pants." When the would-be victim ran to the window and screamed for help, Quinones sought to escape:
Fleeing empty-handed, Quinones ditched his gun, a .380-caliber semiautomatic pistol loaded with hollow-point bullets, and made a dash down a rear fire escape.
But again, his low-slung pants fell to his ankles, tripping him and sending him falling three stories to his death, authorities said.
See you on Monday.
Last week I discussed a series of articles the Plain Dealer recently ran, accusing County Prosecutor Bill Mason of prosecuting hundreds of cases without any solid evidence to back them up. I explained why I didn't think the article found the mark. Any prosecutors' office is going to wind taking cases to trial only to have them completely fall apart; that's not necessarily an indication that there was nothing to the case to begin with.
But Common Pleas Judge Tim McGinty took to the pages of the Cleveland Plain Dealer last Sunday to make an argument that somebody else is to blame for "weak or borderline cases" that should "never have even gone to the grand jury."
The client's family comes into you, with money for you of course, but more importantly -- for them at least -- an affidavit from another inmate stating that he was the person who actually committed the murder for which the client is serving a 20 year sentence. You set about drafting your new trial motion on the basis of newly discovered evidence -- and if the fact that somebody else is the one who did the crime isn't newly discovered evidence, what is? -- and start by researching the issue. You plug in something like "'new trial' and affidavit and recant" into Lexis to see what you get.
And what you get is case after case where the appellate court affirmed denial of a motion for new trial on those very grounds, often where the trial judge didn't even bother holding an evidentiary hearing.
Well, buck up, Sparky, because after 8th District's decision last week in State v. Gray, you'll be able to cite at least one case in your brief.
I've often thought that Milton Bradley should make a board game out of Ohio's sentencing scheme. "Judge screws up PRC -- advance three spaces." "Judge gives disproportionate sentence -- appellate panel laughs and tells you to go away." Of the five criminal decisions handed down by the 8th last week, three would serve as useful models for such a game.
View more posts in the Archive »