The US Supreme Court gets back in session with several oral arguments last week, including one in a major search case we’ll talk about on Wednesday.  Hint:  it may be better if you not only don’t Bogart that joint, but don’t flush it when The Man comes a’knocking.

Down in Columbus, the only thing of interest was the decision in In re Griffin, in which the court denied Hasan Griffin’s application to take the bar examination.  The court found that he lacks the requisite character to become a lawyer because he has “no plan or ability” to pay the $170,000 in student loans that he’d piled up, all but $20,000 of it incurred in getting his law degree.  As a recent New York Times article pointed out, law school graduates “face the grimmest job market in decades.”  Given that, and that the average law student graduates with $100,000 in debt, one suspects that Griffin is not alone in failing to come up with a coherent strategy of working that debt off.

In the lower courts, the heavy lifting was done by the 8th District; of the 116 decisions from the courts of appeals, 47 of them were out of Cuyahoga County… (keep reading…)

The Next Big Thing.  I ran into John Martin, the diminutive head of the county PD’s appellate division, the other day, and he let me in on the new Big Idea.  Since the Supreme Court’s finally tosses Rance, the likelihood is that the determination of whether two offenses are allied is much more likely to hinge on the determination of whether there was a separate animus, rather than Rance’s hypertechnical abstract comparison of the elements.  So who gets to decide whether there was a separate animus?  The judge, of course.  Martin’s argument is that under Blakely v. Washington, you’re entitled to a jury finding on that.

I told him I thought that was a hard sell, given Oregon v. Ice.  In Ice, the state statutes carried a presumption for concurrent sentences, but that presumption could be overcome if the judge found that the offenses did not arise from the same conduct or created a greater risk of harm to the victim.  The Supreme Court, of course, held the statutes didn’t run afoul of Blakely, because traditionally (i.e., at common law) the determination of whether to impose consecutive sentences for multiple offenses was solely within the judge’s prerogative, not the jury’s.  Essentially, Ice upheld the right of a judge to impose consecutive sentences because he found that the crimes didn’t arise from the same conduct. 

Still, anything Martin says should get some attention; his elfin proportions house an exceedingly sharp mind.  In oral argument on several cases in the Supreme Court over the past two years (here and here), he argued for using conduct as the standard for determining whether offenses merged, which the court finally got around to adopting in State v. Johnson last month.  So run it up a flagpole and see who salutes.

Drawing the line.  The single most important lesson for a lawyer, and the hardest one to learn, is how to turn down money.  Someone comes in to retain you on a case, and you can smell trouble.  Oh, it’s not the usually indications, like the fact that they have their entire legal file with them in a shopping bag, or that they’ve had three previous lawyers on their case:  any attorney who hasn’t flatlined his last EEG knows enough to usher them out of the office without further ado.  No, I’m talking about the guy who talks too loud or doesn’t make eye contact with you or claims that he was set up the police (who, of course, have nothing better to do than frame people for 5th degree felonies) or the guy who feels that it is monumentally important for you to hear his Life Story before he gets into the details of why he’s there. 

So you tell him that you’d really like to help him out, but for something like that you’d have to charge at least five grand with a retainer of three, but instead of looking shocked, muttering “five grand???” and stomping out of your office, he pulls out a wad of $100 bills and counts out thirty of them and plops them on your desk.  And even as you’re writing the receipt, you know that it’s the last money you’re going to see from him, that until the case is over and probably well after that you’re going to rue the day you took it, but you can’t help it:  you just can’t bring yourself to watch three thousand dollars walk out the door.

So I’ve taken cases, done things in my legal career that I wish in retrospect I hadn’t done.   I didn’t get into law for the money, but I’ve taken cases I knew I shouldn’t have just for the money.  But you know what?  I still wouldn’t have taken a case involving a lawuit over this commercial for cat litter:

I would not take a case which involved me saying in court papers that “independently conducted research” shows that the Clorox ad is “severely flawed” because it used eight cats which had access to only two litter boxes, since “it is well known that inter-cat behavior can impact cats’ use of a particular litter box in ways that have nothing to do with cat preference for or rejection of a particular litter.”  Or that with cats “toileting issues are secondary to issues with the litter or litter box,” that ”a toileting problem can also stem from factors that are unrelated to the litter or litter box, such as intercat aggression,” and that ”a cat that is frightened of other cats in the home may feel vulnerable accessing or using the litter box and may ultimately select an inappropriate toileting site.”

I can suggest an appropriate toileting site for the lawsuit.

Ever have one of those days when you would have been better off if somebody had stabbed you in the head during breakfast?  (keep reading…)

Back in November, I mentioned the 8th District’s decision in State v. Mansaray, in which US Marshalls, in executing an arrest warrant for somebody else, entered Mansaray’s house and observed drugs in plain view.  Mansaray’s conviction went by the boards when the 8th threw out the search, holding that an arrest warrant doesn’t give the police the right to enter a residence of a third party unless they have a reasonable belief that the person named in the warrant lives at the residence and is in fact home.

The State recently filed a Memorandum in Support of Jurisdiction, seeking the Ohio Supreme Court’s review of the decision.  The first proposition argues that there’s a conflict in the law:  certain Ohio appellate decisions go one way, while there’s a US Supreme Court decision that goes the other.  Gosh, the US Supreme Court says one thing about federal constitutional law, Ohio appellate courts say another; that’s gonna be a tough one to sort out, huh?

But the second argument in Mansaray might get some traction; in fact, the Supreme Court’s already accepted another appeal on that very proposition.  And that proposition goes to the continued vitality of the exclusionary rule.  (keep reading…)

The court takes a breather after its holiday output, handing down only eight decisions, two of them pro se petitions for sundry relief in criminal cases.  The latter raise no interesting legal issues, other than that such petitions are about the only ones left where the rules of pleading are enforced with ruthless vigor.  Even the most idiotic civil complaint will usually survive a motion to dismiss for failure to state a claim, but some poor rummy files a habeas petition claiming that his jailers get their jollies from attaching electrodes to his genitals every morning, and it gets peremptorily tossed because he didn’t attach a copy of the journal entry of his commitment.  (keep reading…)

The US Supreme Court gets back in session next week, and its Ohio counterpart took a respite from the rush of decisions in the last two weeks of the year.  One we didn’t mention last week was the “other” Johnson case, State v. Johnson, which involved Johnson’s conviction for having a weapon under disability based on a prior drug conviction.  Last year in State v. Clay (discussed here), the Supreme Court had held that the reckless mens rea applied to whether the defendant was aware that he was under an indictment which disqualified him from owning a weapon.  The 8th District had extended that in Johnson to require the State to prove that Johnson was “reckless” in knowing that his prior convictions — one a misdemeanor drug offense and one for selling counterfeit narcotics — precluded him from having a weapon.

State v. Colon and the reconsideration of that decision in Son of State v. Colon represented a lamentable obfuscation of the law regarding mens rea, which was partially corrected by the overruling of those decisions earlier this year in State v. Horner.  But only partially, as we learn in Johnson.  As I mentioned when I discussed the oral argument in Johnson, the court had an easy out:  it could hold that while Clay could claim a mistake of fact — he wasn’t aware he was under indictment — Johnson seemed to be argued a mistake of law:  that he wasn’t aware that his drug conviction disqualified him from having a weapon.  Instead, the court meanders through the law on mens rea, rejecting the dissent’s argument that because the statute begins “no person shall knowingly possess,” that mens rea applies to the subsections as well, and holds that under RC 2901.21(B),  ”recklessness” is not the supplied mens rea unless “there is a complete absence of mens rea in the section defining the offense and there is no plain indication of a purpose to impose strict liability.”

The syllabus concludes that a conviction for violation of weapons disability under RC 2929.13(A)(3) — convicted of or under indictment for any offense involving drugs — does not require proof of a culpable mental state.  But wait a minute, didn’t they say in Clay that recklessness was required for the under indictment part?  Oh, shut up.

In the courts of appeals… (keep reading…)

Criminal appellate work isn’t for those with self-esteem issues.  It’s a lot tougher on your ego than trial work.  Although stats vary, most show that defendants win at trial around 40% of the time; the rate for successful appeals is closer to 10%.  A criminal case can result in a plea bargain, which renders murky “won-lost” distinctions; you don’t bargain in an appeal.  Unless you talk to the jury, you never really know why you lost a criminal trial.  In an appeal, it’s right there in black and white:  that argument you spent hours researching and honing until it it was an exemplar of cogency and persuasiveness is dismissed as “devoid of merit.”  And sometimes the court will even twist the knife, telling you that your arguments were winners, but you still lose because it didn’t matter:  any mistake at trial was “harmless error.”

And that’s what happened to me two weeks ago in State v. Blazer.  (keep reading…)

This was London Fischer’s argument:  When he was sentenced back in 2002 to 14 years in prison for various and sundry crimes, the judge hadn’t properly advised him of post-release controls.  The Ohio Supreme Court had ruled in a number of cases, most recently State v. Bezak, that if a judge failed to properly impose post-release controls at the time of sentencing, the sentence was void.  If Fischer’s sentence was void, that meant there wasn’t a final order to appeal from.  If there wasn’t a final appealable order, the appeal Fischer took from his initial conviction was void, too; a court of appeals only has jurisdiction over final orders.  What all this meant was that when Fischer had his brand new sentencing hearing in 2008 so that the court could properly impose PRC, Fischer’s appeal from that was his first actual appeal.  The previous appeal was a nullity, and so res judicata didn’t bar consideration of the same issues he’d raised the first time around.

Two weeks ago, in State v. Fischer, the court termed the argument “creative.”  It wasn’t, really; it was simply a logical extension of the court’s rulings on the subject.  Of course, if they bought the argument, that would pose a host of problems:  basically, anyone who’d had PRC improperly imposed at their sentencing was not only entitled to a new sentencing, but to a brand new appeal from their original conviction as well.  After the oral argument, I’d predicted that the court wasn’t going to buy this, and would overrule Bezak.  I was more than half right; the court didn’t flatly overrule Bezak, but there’s not much left of it. (keep reading…)

Six months ago, you could have made a compelling argument that the clarity of Ohio criminal law would be substantially enhanced by overruling three decisions:  State v. Colon, which had held that an indictment which tracked the language of the statute was defective if didn’t specify a mens rea; State v. Bezak, which had held that sentences where post-release control hadn’t been properly imposed were void; and State v. Rance, which required that, in determining whether two offenses were allied and thus merged, the court had to compare the elements of the two crimes in the abstract. 

Well, here we are, six months later.  State v. Horner took care of Colon.  Two weeks ago, in State v. Fischer (which we’ll discuss tomorrow), the court decided that “void” didn’t really mean void, and greatly limited the impact of Bezak.  And last week, in State v. Johnson, the Supreme Court concluded that its efforts to salvage Rance — which I once described as being “vaguely reminiscent of Weekend at Bernie’s, with the plot focused on increasingly outrageous efforts to fool people into believing that Bernie isn’t really dead” — had run its course. (keep reading…)

As part of the sentencing reforms in 1996, the State legislature mandated that, before a judge could impose consecutive sentences, he had to make certain findings of fact.  Ten years later, in State v. Foster, the Ohio Supreme Court decided that was a violation of the 6th Amendment.  Three years later, in Oregon v. Ice, the US Supreme Court said that it wasn’t.

Ice had to be reconciled with Foster sooner or later, and sooner came last week in the form of State v. Hodge.   Although I’d initially been quite optimistic about the outcome, that changed after the oral argument, where Justice Pfeifer lambasted the defense for wanting “one more train wreck” by asking for resentencing in all cases since Foster had been handed down.  I’d worried that “the court might just decide that there have been too many train wrecks recently.”

Well, guess what?

(keep reading…)