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… (keep reading…)

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. (keep reading…)

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. (keep reading…)