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.
Only one decision out of DC, Los Angeles County v. Humphries, which dealt with municipal liability in 1983 actions. You can't hold a city liable for a wayward police officer's acts in civil rights cases under respondeat superior; you have to show that the acts were the result of a city policy. In Humphries, the Court extends that rule to cases where only declaratory and injunctive relief (and attorney fees) is sought. And there's an interesting twist to Pepper v. US, the case I mentioned last week and which is scheduled for oral argument today, involving whether post-sentencing rehabilitation can be taken into account when a case is sent back for resentencing. Turns out that the Justice Department changed its mind, and now supports Pepper's position. Instead of sending it back to the 8th Circuit, as the DOJ suggested, the Court appointed an attorney to defend the decision below. About two or three times a year, the Court will appoint an amicus to argue positions abandoned by the parties.
A wealth of decisions from Columbus. In State v. Dye, the court addressed the question of what happens if a victim dies after the defendant has already been convicted of a crime in regard to the incident. That's not a double jeopardy issue -- if the defendant pleads guilty to, say, felonious assault, he can still be convicted of murder if the victim dies later, because death is an additional element. But there is a due process and contractual issue involved where the defendant has pled guilty, and in 1993 in State v. Carpenter, the court held that a plea to a lesser offense barred a subsequent prosecution unless the state had specifically reserved the right to bring further charges. In Dye, the state had argued that there really hadn't been a plea "bargain": Dye had pled guilty to the indictment, although some specifications had been dismissed, and had been given the maximum term. The court found that the dismissal of the specifications and its agreement that Dye could remain free on bond pending sentencing, coupled with both parties being aware of the gravity of the victim's injuries -- the car accident Dye had caused had left him a quadriplegic -- showed that the result was a "negotiated" plea, in the absence of which the state's failure to reserve the right of further prosecution barred it from doing so.
In State v. Davis, the state had called the defendant's wife to testify, without anybody apparently remembering that there is such a thing as spousal privilege. The 8th District had reversed the ensuing conviction, finding that failure to advise the witness of her right not to testify "constitutes reversible plain error." Those words are not from the 8th; they're a quotation from a Ohio Supreme Court decision on that point. Well, says the court in Davis, we really didn't mean "constitutes reversible plain error," in the sense that it's automatic; an appellate court still has to determine if the error substantially affected the proceedings, and so it gets reversed and remanded for that purpose.
In State v. Miller, the defendant had pled guilty, with an agreement to pay restitution of $20,000, before a visiting judge. Come sentencing, the judge forgot to impose it. Two months later, the State moved to amend the sentencing entry to include restitution, and the regularly-assigned judge granted it by nunc pro tunc entry. Two judges on the 8th found that was a proper use of the procedure, but that position found nary a vote among the Supremes, with the syllabus saying it all: "A court may not use a nunc pro tunc entry to impose a sanction that the court did not impose as part of the sentence.
Not much happening in the courts of appeals, but let's take a look...
We'll call this the With a Little Help From My Friends Edition:
If at first you don't succeed. The Ohio Supreme Court finally came down with some decisions this past week; quite a few of them, as a matter of fact, so I'll have plenty to write about in the Case Update on Monday. Yet another reason to choose life. One of them was another one in the W column for John Martin, head of the Cuyahoga County PD's appellate division, in State v. Miller. I'll discuss the legal aspects next week, but the back story is rather interesting. Turns out that the State entrusted delivery of its merits answer brief to a delivery service which shall go nameless but rhymes with Red Mex, only to miss the filing deadline when the service's truck broke down on the way to Columbus. The prosecutor's office asked for leave to file the brief a day late -- a motion in which Martin, the consummate gentlemen, joined -- only to be told by the clerk's office that it wouldn't accept it for filing because the Supreme Court rules made no provision for such a motion.
You don't file an answer brief, you don't get to appear at oral argument, and so when Martin stood up before the court in September to argue the case, there was no one at the prosecutor's table. Being the prick that I am, I probably would have begun by saying, "I'd like to reserve five minutes for rebut -- oh, that's right, I don't have to do that, because the other side ISN'T HERE!" Martin, despite his elfin proportions a much bigger man than I, again demurred, even going so far as to explain what had happened and absolving the State of blame for it. The case involved the failure of the judge to impose restitution at the time of the sentencing hearing, and one of the justices inquired whether a prosecutor had been present at the sentencing. Again, I would have cast a backward glance at the empty opposing table and sighed, "Yes, there does seem to be a pattern here, doesn't there?" Again, Martin refrained from so base a response.
And he ran the table, winning 7 to zip. Lest you think it was a win by forfeit, here's the kicker: the Supreme Court initially turned down the case for review. When Martin saw that the vote on that was 4-3, he filed a motion for reconsideration, and one of the justices flipped and agreed to hear it.
Well, that explains it. On Tuesday I mentioned the 8th's decision last week in State v. Russell, which reversed a judge's decision denying a motion for new trial on the basis of newly discovered evidence. According to the opinion, as a result of public records requests after trial, the defense obtained documents that hadn't been provided by the State at trial. The opinion took pains to note that the documents had never been turned over to the county prosecutor, and most of the decision concentrated on the issue of whether the information would have affected the outcome of the trial. I had some qualms about the court's determination on that point; since the case had been tried to the judge, and he seemed to be in a better position to decide that issue. I figured that the court's decision on that point might have been affected by the judge's determination that the evidence wasn't newly discovered at all, but was available to the defense at the time of trial. I couldn't figure out how the defense could have had the evidence if the prosecutor acknowledged that she didn't, and found the judge's decision on that point completely unsupportable.
In fact, I couldn't really figure it out; the judge in question is a thoughtful, fair, and intelligent guy. Well, I talked to one prosecutor, and got an email from another, and there's another side to the story: according to them, the State was able to establish that the "newly discovered evidence" had been given to the defense attorneys by the municipal prosecutor before the case got bound over. They had it all along.
I don't know if that's true, but my guess is that we'll eventually find out.
Factoid for the day. On Wednesday, I wrote about the Plain Dealer's most recent attack on beleaguered Cuyahoga County Prosecutor Bill Mason. Brian McGraw, a former county prosecutor and one of the top defense attorneys in town, wrote a thoughtful comment agreeing with my criticisms of the PD's story, while also noting the lack of profundity in my observations, but also pointing out the real problems with how the prosecutor's office has run during Mason's tenure.
So yesterday I had a meeting with a prosecutor. The lobby of the office is adorned with the picture of every Cuyahoga County prosecutor who has served since Ohio became a State in 1803, with their dates of service, and (a) having to wait a few minutes and (b) being an anal retentive, I spent the time every one of the pictures.
Apparently, for a long time the term was a year; nobody served longer than that for about thirty years after the Civil War. Even when it was lengthened to four years in the early 20th century, almost everyone served but a single term. And then, of course, you run into the legendary John T. Corrigan. He was the County Prosecutor when I started practicing in 1975, and he'd been at it by that time for longer than I'd been alive; he began in 1947. He tried the Sam Sheppard case the second time, and finally retired in 1990.
And I learned something that even the prosecutor I saw that afternoon -- who'd been there almost thirty years -- didn't know: Bill Mason has served as Cuyahoga County Prosecutor for longer than anyone in county history, other than Corrigan.
Jeez, throw the guy a party or something.
See you next week.
On Monday, I talked about State v. Conley, a 10th District case which mentioned in passing that the coroner who had peformed the autopsy wasn't available by the time of trial, and so another assistant testified in his place. Neither the court nor the parties raised the issue of whether this presented a Confrontation Clause issue under Crawford v. Washington, which had held that the 6th Amendment barred the admission of "testimonial statements" unless the declarant appeared at trial. That's perhaps not surprising, in light of the fact that four years ago, in State v. Craig, the Ohio Supreme Court held that autopsy reports are "business records," and thus aren't testimonial. Last week the 8th District, in State v. Jaime, held that police dispatch call logs were exempt from Crawford under the same reasoning, citing Craig.
But maybe it's time to take a second look at the validity of Craig and the "business records" exemption from Crawford in light of the US Supreme Court's subsequent decision in Melendez-Diaz v. Massachusetts.
You won't get much argument out of Cuyahoga County Prosecutor Bill Mason about the truth of the aphorism, "never get into a pissing contest with someone who buys ink by the barrel." The Cleveland Plain Dealer has been taking shots at Mason for years -- some with merit, some not -- but the week before Thanksgiving it rolled out its big gun: a five part story alleging that Mason's office "went after hundreds of people with little or no evidence." Ironically, on this score, it seems the newpaper did pretty much the same thing to Mason.
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