January 2011 Archives
The only case out of Columbus last week was State ex rel. DeWine v. Burge, which I talked about on Friday. I even went so far as to check out the court's oral argument calendar into March, and all I can say is boooorrrrrinngggg.
The US Supreme Court's is pretty much out of session, too; the next conference of the justices isn't scheduled until February 18, and oral argument won't resume until February 22. There are a couple of prominent cases that week. One is Bullcoming v. New Mexico, which deals with an issue left over from Melendez-Diaz v. Massachusetts: when the analyst who performed a forensic test isn't available for trial, can someone else (in this case, his supervisor), testify for him? The Ohio Supreme Court initially held that this was permissible in State v. Crager, but reversed itself after Melendez-Diaz (discussion here). We'll find out which time they were right. The other case is Bond v. United States, which raises the issue of whether a defendant can challenge the constitutionality of a federal criminal statute on 10th Amendment grounds. That's not quite as expansive as it might sound; the question is not whether the statute -- in this case, one prohibiting the use of "weapons of terrorism" -- is a proper exercise of Congress' powers, but whether a defendant even has standing to challenge it; the 3rd Circuit had held that only a state or local government has standing to do that. Just about everybody, including the US government, has filed briefs supporting Bond; in fact, the Court had to appoint an amicus to defend the judgment. I'll have more extensive posts on those cases after the oral arguments.
In the courts of appeals...
Some of the names are familiar. There was the Wee Care Nursery School case, where Margaret Kelly Michaels was charged with 299 counts in the sexual assault of 33 children; her conviction and 47-year prison sentence was thrown out based on the suggestive interview methods used by the police with the children , as well as highly questionable "expert" testimony. There was the Little Rascals day car case, where Bob Kelly was convicted of 99 counts of engaging in rape, sodomy, and satanic ritual abuse of the children in his care, despite a complete lack of physical or forensic evidence; his conviction was thrown out six years later.
Then there were others that aren't so familiar, like the Wenatchee, Washington, case which resulted in 43 adults being arrested on 29,726 charges of child sex abuse involving 60 children. Or the Fells Acre Day Care Center case, where the children told of being abused by a clown and a robot in a secret room at the center, and of watching animals being sacrificed; one even claimed that one defendant had penetrated her anus with a 12-inch knife. Again, there was no evidence other than the testimony of the children.
Some of the defendants got lucky. Dale Akiki, a volunteer baby-sitter at a church, was accused of satanic ritual abuse, including killing animals and drinking their blood in front of the children, but was acquitted, and eventually won money in a lawsuit against the county for bringing the case. So did Richard and Kari Klassen, who had been charged with running a satanic cult called the Brotherhood of the Ram, which supposedly practiced ritualized sexual abuse of children.
Nancy Smith and Joseph Allen got a break, but their luck ran out yesterday.
Although the Ohio Supreme Court hasn't come down with any decisions since the flurry of big ones at the end of the year, it's back in session for oral arguments, and I thought I'd take a day to look at some of them.
Two years ago, in District of Columbia v. Heller, the Supreme Court held that the 2nd Amendment guaranteed an individual, rather than collective, right to bear arms. Last year, in McDonald v. City of Chicago, the court applied the 2nd Amendment to the states. In the wake of Heller, numerous legal observers, including me, opined that the decision would have an affect on gun regulations, as I suggested here:
I recently had a client charged with having a weapon under disability, based on a twenty-year-old drug conviction. If there’s an individual constitutional right to own weapons, does the age of the conviction and the nature of the crime preclude imposing a disability on that basis? Can you argue that there’s no “compelling interest” in imposing a disability in those circumstances?
Sad to say, as I acknowledged here, that argument went nowhere: there was a concurring opinion in a 10th Circuit case suggesting that felon-in-possession laws might be questionable in non-violent or non-drug cases, and there was a favorable district court ruling that got overturned on appeal, but nobody was listening to those who suggested that Heller/McDonald required a fresh look gun disability laws.
The Ohio Supreme Court handed down some momentous decisions in the last few weeks of 2010, perhaps none more so than State v. Johnson, which overruled State v. Rance and announced a new method of engaging in allied offense analysis. Or perhaps an old one... The court struggles with it in one case, and in several more engages in more work than it needs to.
No big news out of DC. The Supreme Court did engage in its favorite contact sport -- beating up on the 9th Circuit -- unanimously reversing the latter court's grant of habeas in two cases, Harrington v. Richter and Premo v. Moore. The former decision holds that a state court's summary disposition of a case is still entitled to deference in habeas, and the latter reinforces the difficulty of proving ineffective assistance of counsel; Moore had claimed that his attorney should have filed a motion to suppress his confession, but given the two other admissions Moore had made to others, the Court concluded the exercise would have been pointless.
In Columbus, two Supreme Court justices get attention for what they say in their swearing-in ceremonies, rather than in their opinions. Justice Paul Pfeifer, one of the authors of Ohio's death penalty law in 1981 while he was in the legislature, called for its abolition, saying that it is now being used for cases for which it was never intended. He also took a shot at the numerous amendments to Ohio's constitution that have been added over the years, citing the amendment creating the Ohio Livestock Care Standards Board as one particularly idiotic (my words, not his) example. True that. Meanwhile, incoming Chief Justice O'Connor called for reform of the state's probation system. A bill to do that died in the legislature last year, but budgetary pressures might force a re-think.
A case of some local interest from the 6th Circuit. Dean Boland, a former Cuyahoga County assistant prosecutor, parlayed his prowess with technology into serving as a defense expert in some notorious child pornography cases. In one, he took "stock" photos of two children and used various software techniques to "morph" them into pictures of children engaging in sex, then argued that the child porn law was unconstitutionally overbroad because a defendant could not determine whether the image he was viewing was actual or virtual. The parents of the children he'd used got wind of it, and sued him under the civil remedy provisions of the child pornography act, which provide for minimum damages of $150,000. The lower court granted summary judgment on the grounds that a defense expert had immunity from suit, but in Doe v. Boland the 6th Circuit found no such immunity in the statute, and remanded it back for consideration of any other defenses, or trial.
On to the courts of appeals...
Our tax dollars at work. More accurately, Florida taxpayer's dollars. And they're up in arms over the First District Court of Appeals new courthouse in Tallahassee, which was originally budgeted for $22 million and came in at $48.8 million. (The tab will be around $70 million when interest on the bond issue is figured in.) How did they get a $26 million overrun? As this article recounts, it might have something to do with the 27 flat screen TV's. Or separate bathrooms and kitchens for all 15 judges. Or the granite counter and desk-tops. Or the "miles of African mahogany." (What, Florida mahogany wasn't good enough for them? Note to self: Google to find out if there is such a thing as Florida mahogany.) The legislature is up in arms over the matter -- Florida, like just about every other state, is in the midst of a budget crisis -- and the two judges primarily responsible for the fiasco were recently grilled by the state senate budget committee, with its chairman promising to prevent "an irresponsible rogue state judge from spending tax dollars" in the future.
I can happily report that our 8th District judges have foregone similar luxury. The court of appeals shares its building with two other divisions of the common pleas court, probate and domestic, as well as with various other county departments, thus posing the possibility of some rummy wandering into the middle of an oral argument to ask where you get marriage licenses. I don't even know whether they have separate bathrooms. I've got an oral argument coming up in a couple of weeks; I'll ask.
Meanwhile, if you want to see real opulence, check out the Federal District courthouse they built here in Cleveland about five years ago. I had a pretrial right after it first opened, and I'm not saying that the judges' chambers are spacious, but when I walked into one I could see the judge just over the horizon.
Cyberbullying update. Remember when bullying meant a wedgie? Technology marches on, and last week Matthew Riskin Bean was sentenced to 45 days in jail for his involvement with a group of other web users who tried to induce a teen to commit suicide. (Details here.)
What jumped out at me about the article was that this was a conviction in U.S. district court. There have been numerous criticisms of the expansion of Federal criminal law into areas traditionally reserved to the states, and I'm at somewhat of a loss to understand why "cyberstalking" can't be handled on a more localized level.
It could be worse. After 13-year-old Megan Meier committed suicide in 2006, which was attributed to bullying messages posted to her MySpace account, Congresswomean Linda T. Sanchez (D-CA) sponsored the Megan Meier Cyberbullying Prevention Act of 2008, which would have made it a Federal crime, punishable by up to two years in prison, to use the Internet to "intimidate, harass, or cause substantial emotional distress to another person." Fortunately, the bill never made it out of committee, as just about everybody except Sanchez recognized the obvious First Amendment problems with the proposed law.
On a related topic, could we please stop naming laws after people, especially kids? Adam Walsh Act, Megan's law, Megan Meier Cyberbullying Protection Act... If I were five years old, my goal would be to make it to eighteen without having a law named after me, because if it was, it probably meant something very bad had happened to me.
My kind of prosecutor. David Escamilla is a cool guy. He's the prosecutor of Travis County, Texas, where Austin is located. Recently, police there arrested Jose Rios and Samuel Olivo for driving while intoxicated. It wasn't your ordinary DUI; Rios and Olivo were arrested for being intoxicated while riding mule and a horse, respectively, through Austin's entertainment district.
Escamilla decided not to pursue charges. "The law doesn't support DWI on an animal," he explained. "It has to be a motor vehicle or device. And our research shows a mule is not a motorized vehicle. To be absolutely sure, I watched a few episodes of 'The Lone Ranger,' and not once did I hear the masked man refer to Silver as a device."
An even bigger problem with the case was that the arrest affidavit said Rios claimed he'd had two vodka-and-cranberries. "That doesn't seem like the right drink," said Escamilla. "This story begs for tequila."
On Monday's Case Update I briefly mentioned a 12th District case, State v. Gross, which had affirmed the denial of an application to expunge an arrest record. I'd thought of doing a little bit more on the decision, maybe a couple paragraphs at the end of the post, but got pressed for time.
I've thought about it since then, and have concluded that the decision merits its own post. So here it is.
Just a normal day at the projects for the Lexington, Ky. police, conducting drug buy/busts. One of the dealers smelled something fishy, though, and took off running after selling some crack to an informant. The police followed him into the apartment building, lost sight of him, but then heard a door slam at the end of a hallway. There were only two apartments the guy could have gone into, and, smelling a strong odor of burning marijuana coming from one, the police decided to go with the odds and knocked on the door of that one and announced themselves. There was no response; instead, they heard things being moved around, which "based upon their training and experience, the officers recognized to be consistent with the sounds of destruction of physical evidence." So they barged in.
I practice in Cleveland, and every Tuesday here I look at the decisions of the Cuyahoga County Court of Appeals. If I lived in Athens, I wouldn't be able to do "What's Up in the 4th" every week. Since the beginning of the year, the 4th District has issued four decisions; last week alone the 8th handed down forty-seven.
Lucky me. Let's take a look.
View more posts in the Archive »