February 2011 Archives
Well, that was quick. It can take a while for the Ohio Supreme Court to issue a decision after oral argument; I've seen it go as long as a year and a half. Barely more than a month ago, the court heard oral argument in State v. Ford, involving the issue of whether a firearms spec could be attached to a charge of discharging a firearm into a habitation. Ford claimed that it couldn't, because the firearm spec was an allied offense with discharging into a habitation -- they were committed with the same act under Johnson -- and so they merged. When I discussed the argument, I said you could "bet the ranch on the outcome," and that Ford's attorney, despite doing a splendid job in his presentation, will be "unsurprised when the court unanimously affirms his client's conviction." I hope he was, because that's exactly what happened, the court easily concluding that a firearm specification isn't an "offense," but rather a penalty enhancement, so questions of merger don't arise.
Opinions are starting to come out of the the US Supreme Court, too. Last week the Court held in Bruesewitz v. Wyeth that the National Childhood Vaccine Injury Act pre-empted all design-defect personal injury claims against vaccine manufacturers, but ruled in Williamson v. Mazda Motor that Federal auto safety standards didn't pre-empt state claims, in that case one that car manufacturers should have installed lap-and-shoulder belts, rather than just lap belts, for rear seat passengers.
The criminal case of note, for those plucky souls who practice habeas law, was the decision in Walker v. Martin. One of the barriers erected to habeas relief in recent years is procedural default: that if somebody doesn't timely file a claim in state court, review of that claim in Federal habeas is prohibited. In Martin, the court unanimously held that California's requirement that a state habeas petition be filed within a "reasonable time" was an adequate state ground to bar habeas review. In the immortal words of Roger Waters, just another brick in the wall.
On to the courts of appeals...
Getting an edge. Athletes are notorious for superstitions and performing certain rites. Basketball players will bounce a ball the same number of times before a free throw. University of Georgia field goal kicker Blair Walsh eats a miniature box of Raisin Bran in the locker room before every game. My favorite was former Indians first baseman Mike Hargrove, whose elaborate ritual of stepping out of the box after each pitch, tapping his cleats, tugging at his uniform, fixing his cap, and so forth, led him to earn the moniker "the Human Rain Delay." Baseball stathead Bill James had the best comment on this, noting in one of his annual reviews that Hargrove's routine was proof that the players had gotten softer; "thirty years ago pitchers would have used him for target practice."
But belief in appeasing the gods of fate is not limited to athletes, it turns out; according to this New York Times article (h/t to Legal Blogwatch), lawyers can be every bit as superstitious. Some confine themselves to wearing a certain item of clothing, like Bernie Madoff's lawyer, who "always wears a certain kind of Hebrew University tie during his opening statement." Others perform more demanding rituals:
For three straight days while awaiting a verdict in the recent terrorism trial of his client Ahmed Khalfan Ghailani, his lawyer, Peter Quijano, ordered a cheddar burger and bloody mary from the same waitress in the same booth at the Whiskey Tavern on Baxter Street.
Mr. Quijano, as he did in that case, also tries to insert the name of his Scottish terrier, Watson, into summations.
And if you're homeless, you'll want to target Gerald L. Shargel, who's represented various mob figures and won't pass up a beggar while he's in trial, typically giving each a $20 bill.
Trial tip of the day. You've had easier trials, to say the least. Your client Gerald is accused of the drive-by shooting of four people. You've done everything you can preparing for trial, carefully reviewing all the reports and statements, outlining your cross-exam of the key state's witnesses, mapping out the voir dire questions you want to ask in your effort to indoctrinate the jury. You've even spent some time with Gerald, explaining that it might be better if he didn't show up at trial wearing the baggy pants with his underwear showing, or that he might want to dispense with a t-shirt like the one at right in favor of something with long sleeves so as to hide the tattoo of Satan on his arm. You're racking your brain, trying to think of something, anything else you can do.
Well, you might take Gerald to Lenscrafters. According to this story (h/t to Overlawyered) in the New York Daily News, "nerding" up the defendant by having him wear glasses at trial is the Latest Big Thing:
"If a jury thinks the defendant looks incapable of a brutal crime, then it's certainly an advantage for the defense," one prosecutor said. "The glasses create a kind of unspoken nerd defense."
The last accused killer to pull off the four-eyed legal gambit was Thomas Cordero, a housekeeper hired to work in the buff. A Bronx jury acquitted him last month of the stabbing death of John Conley despite overwhelming evidence.
Cordero sported bifocals throughout his trial, but ditched them the moment he was free.
Funny how an acquittal will improve your vision. It's a miracle!
Open palms. Another election season has come and gone, and that includes judicial elections. One of the common pleas judges running for re-election here was under federal indictment at the time. She lost, but by less than 6% of the total vote, which revived the pointless discussion of merit selection of judges.
I say "pointless" because the discussion has been going on ever since I became a lawyer, and we're no closer to that point than we were then. Despite the fact that there's virtually no way for the average voter to make an informed, intelligent choice about which judge to vote for, the voters have indicated no desire to relinquish their right to make that choice.
And when judges run, they need money, and when they need money, they look for contributors, and that means me and other lawyers, especially those who take court-appointed cases. The distinction between this and bribery is often quite blurred. The 34 judges here rotate their time in the arraignment room, but it's not unknown for judges running for re-election to jockey for an extra couple of weeks there. Why? Because it's the arraignment judge who assigns lawyers to cases. Sometimes the line isn't blurry at all. I remember about twenty years ago getting a call from a bailiff whose judge was running for re-election telling me that if I came over with a check for $50 that day, I could get an assignment. Everybody else in my office got the same call. He lost.
Well, New York apparently has taken a second look at this arrangement, and has announced a new rule requiring a judge to recuse himself from any case in which a lawyer has contributed $2,500 or more to the judge's campaign. Scott Greenfield takes a look at this and points out that some have come up with an unforeseen angle to it:
If I'm in New York state court, and dislike the judge my case has been assigned to, can I get a new judge for the mere cost of $2,500? If there's a twelve-judge division, can a $27,500 investment ensure that I get the one judge I'd prefer my case to be assigned to?
Forget $27,500. "Mere" cost of $2,500? Sorry, I'll take my chances.
Open discovery. On Wednesday, I discussed the possibility of the Supreme Court accepting jurisdiction in State v. Biro, where the trial court had excluded the defense efforts to establish one of the state witnesses as an expert, because the defense hadn't submitted an expert witness report. The 8th upheld this, and I expressed the view that the Supremes might want to take a look at this because the new rules of discovery expressly require parties to exchange expert witness reports.
There's some other problems with the new open discovery, especially the growing use of the "counsel only" designation. The rule permits prosecutors to mark documents in this fashion, which prevents the attorney from giving them to the client (or anyone else, for that matter, although you can read the document to your client). The rule expresses no standard on how that decision is to be made, with the result that some prosecutors will use it on everything, and some won't use it at all. It's doubtful that's going to be addressed by case law; the rule will probably require amendment on that point.
But prosecutors do seem to be taking seriously their obligation to turn over material. I'm presently handling a felonious assault case, and received an email that the discovery had been posted on the prosecutor's website. I went to retrieve it, and found one document marked "Defendant's statement." The prosecutor certainly wasn't going to give me room to claim that I was unaware of what my client had said; you can read the entire statement here.
Carole Anne Bond was pissed. Oh sure, she was initially happy that her best friend was pregnant, despite the fact that she herself couldn't conceive, but her joy ended when she found out that her own husband was the child's father. Instead of living life as a cliche, however, Carole decided to get even: she took an arsenic-based chemical from her employer, ordered a vial of potassium dichromate through Amazon from a photography supplier, then rubbed the chemicals on her ex-friend's car door handle, mailbox, and apartment doorknob, believing that they would give her a rash.
It didn't, and Carole was caught. Imagine her surprise when her failed attempts led not to a charge of simple assault or harassment in state court, but a Federal indictment for violating a statute Congress had passed implementing the United States' obligations under the 1993 Chemical Weapons Convention.
Your client's charged with aggravated vehicular homicide and hit/skip, accused of driving drunk and running down a kid on his bike, and then leaving the scene. The first charge goes nowhere -- your client's BAC was less than a fifth of the legal limit -- the judge finds neither recklessness nor negligence, and 29's that one. That leaves you with leaving the scene, but you've got an argument there, too: the state has to prove you knew you'd hit somebody. Your claim is that the rider "ditched" the bike to avoid the collision, and your client never saw him.
You've got help here in the form of an expert witness, who will testify that the damage to the car isn't consistent with having struck a person, but with the bike already being on the ground when the car struck it. The neat thing is, this isn't your own expert; it's a cop the state called as a fact witness, but on cross you show he's an expert on accident reconstruction, and then begin to elicit the testimony about the positioning of the bike.
You feel pretty good about how sharp you are in pulling this off, up until the point where the trial judge prohibits the testimony because you didn't submit an expert report.
Milestone alert: This is the 100th post I've written entitled "What's Up in the 8th." I posted my first one back on September 30, 2008, but called it "8th District Roundup" for a while after that for some reason. This is so much better.
Just to show that's it's not All About Me, let's actually take a look at the cases the 8th handed down last week.
SCOTUS swings back into action this week, with oral argument in three criminal cases, one of which, Bond v. U.S., addresses the increasing practice of making a Federal crime out of offenses which normally fall within the purview of the states. The significance of the case is somewhat muted: the only issue it raises is whether a defendant even has standing to raise the issue. Still, the argument might give some insight into the justices' thinking on the larger issue of federalism, so I'll take a closer look at it later this week.
The other thing of note here is that we've just hit the five-year anniversary of the last time Justice Clarence Thomas asked a question during oral argument. I don't remember that particular occasion -- it was in a death penalty case -- but I do remember one of the few other times that he spoke up. It was in the case of Virginia v. Black in 2002, involving the constitutionality of Virginia's cross-burning statute. It was pretty much a foregone conclusion that the Court would strike down the statute; a decade earlier, it had reversed a conviction of a defendant who'd been prosecuted under a local Minnesota ordinance prohibiting use of various symbols, such as swastikas or burning croseses, to "arouse anger, alarm, or resentment" of minorities. But Thomas changed the entire trajectory of the case, pointing out in argument the long history of the use of the burning cross in intimidating blacks.
I was reminded of that during the hubbub over our new Gov. Kasich's selection of an all-white cabinet. He, and others, made the easy defense: shouldn't merit, rather than color, be the primary qualification for the job? Yes, but... As Thomas proved in the cross-burning case, diversity has value in itself: it exposes you to issues and ideas that may never have crossed your mind otherwise, because it brings a perspective that you don't have. When the Wal-Mart gender discrimination case comes before the Court this year or next, there are going to be three women on the Court. Someone like Ruth Bader Ginsburg, who was one of only eight women in her law school class of 500, is going to bring an entirely different perspective to the case than Antonin Scalia. And that's all to the good.
Nothing going on in Columbus, so let's take a look at what happened in the courts of appeals...
Catching up. Back in 2004, the car in which Luis Melendez-Diaz was riding was stopped by the Boston cops. Melendez-Diaz, the driver, and another passenger were then provided a police escort to the nearest stationhouse, and during the ride, officers noticed the three fidgeting in the back seat. A search of the car revealed 19 bags of Columbia's largest export item.
Although the case was relatively trivial, you may recognize the name. At Melendez-Diaz's trial, the state offered as proof that the powder was cocaine only an affidavit of the lab technician who'd tested the substance. That was in accordance with Massachusetts law, but five years later, in Melendez-Diaz v. Massachusetts, the US Supreme Court held that the law violated Crawford v. Washington by denying a defendant his right to confront and cross-examine the person who'd actually tested the drugs.
So last week, Melendez-Diaz was retried, and this time the prosecutor brought in the analyst, who testified that, sure enough, the white powder was cocaine. Didn't matter; the jury acquitted Melendez-Diaz nonetheless, apparently believing that the cocaine belonged to the two others, and that "constructive possession" stuff was just so much jive. Not that Melendez-Diaz is going to be celebrating his victory; rather, if he is, he's going to be doing it in the prison cell where he's still serving a 10-year sentence for another drug trafficking case.
For pure irony, though, you don't get any better than playing the game, "Whatever happened to Ernesto Miranda," the guy whose case in 1966 dramatically altered the law on p0lice interrogation procedures. At his retrial, sans conviction, he was nonetheless convicted of kidnapping and rape, and did eleven years before being paroled. Four years later, he was killed in a bar fight. The police arrested a suspect, but he invoked his Miranda rights and refused to talk. The police had to let him go, and no one was ever charged in Miranda's death.
The best part, though, is that Miranda made money after his release from prison from selling autographed Miranda warning cards.
Is this a great country or what?
One hand giveth, the other taketh away. A couple of weeks back, I wrote that budgetary constraints might be forcing a re-evaluation of the time-worn "lock 'em up and throw away the key" approach to sentencing. Well, maybe and maybe not; in one of their latest forays into the criminal code, the legislature amended the domestic violence statute to provide that a conviction for a third offense requires a mandatory six-month prison sentence.
I'm not a big fan of mandatory sentences because they often improperly limit a judge's discretion, but that also can be a factor in their favor, because it lessens the disparity in sentences: if everybody who commits a certain crime gets a mandatory eight years in prison, then you're not going to have some people who've been convicted of that crime getting eight years, some getting two, and some getting probation. But mandatory sentences in the range we're talking about here don't do that; six months is actually less than the minimum for a third-degree felony. This change has no rational basis, except to allow politicians to claim that they take domestic violence seriously. Well, other than these guys, who doesn't? But that's not the point, or at least shouldn't be.
Name, rank, and serial number. One of the things I hate about shopping is when the store wants to get your personal information. I stopped going to Radio Shack a few years back, because I'd go in to purchase some $4.00 piece of electronic hardware, and some pimply-faced clerk would insist that the purchase couldn't be consummated until he'd entered my name and address in his computer. The last time this happened, I plopped four bills on the counter, said, "George Washington is the only name you need to be concerned about," picked up the item, and walked out.
So I have a little bit of sympathy for the California legislature's attempt to eliminate this practice by recently passing a law prohibiting retailers from asking for a customer's zip code. Then again... Was a law on this really necessary? We're not talking about name and address here, we're just talking about zip code, which stores use simply to track where their customers are coming from. (Rather than, as in Radio Shack's case, using the more particularized info to bombard customers with newsletters about sales on the latest gadgetry.) It's not like someone could be hurt if this information fell on the wrong hands.
Of course, for those of you with a more cynical bent, Overlawyered has another explanation for the statute.
There wasn't much question that Carl Morris was a boor: he kicked the dog when his wife refused to have sex with him, and propositioned his adult step-daughter a few months after she'd gotten married. The question was whether that evidence should have been admitted in his trial for raping his other stepdaughter when she was nine, and again when she was twelve.
And the even bigger question in the 9th District's decision in State v. Morris was what standard of review to use.
I talked yesterday about the general futility of trying to vacate a guilty plea, or, more accurately, appealing the denial of such a motion. I've had trial judges grant them, but if the motion's denied and you have to go up to the court of appeals, the deferential -- some would call it obsequious -- "abuse of discretion" standard kicks in, and you're going to be hard-pressed to show that.
Marques Manus succeeded in doing so, and that probably should have happened, but the result of the court's opinion in State v. Manus is to add a layer of confusion to allied offense jurisprudence.
The Neighbor from Hell re-emerges, this time as a winner, motions to withdraw pleas get a workout, and allied offenses don't but should. Let's take a look...
The big news out of Columbus was that "the Court granted motions to set execution dates in seven -- count'em, seven -- cases." Okay, the part between the emdashes is mine, but you get the point. Where they're going to get the drug to do it is another matter: the manufacturer of the key drug, sodium thiopental, has discontinued manufacture, leaving states like Texas with only enough of it to execute two of the 317 people it has on death row. An alternative source was temporarily found in England, through a West London pharmaceutical supplier that doubled as a driving school, but Britain banned export of the drug.
The US Supreme Court returns in session next week with oral arguments and, who knows, maybe some opinions, too. Until then, the only thing to write about is court of appeals decisions, so let's go there now...
Your client is caught in a simple buy/bust operation: he sold twenty bucks of crack to an undercover agent. Three years ago, this could have netted him a conviction on three separate charges: sale of drugs, preparation for sale, and possession. Three months ago it would have resulted in two: sale and possession. Does it now result in just a single conviction?
A month ago, I discussed a case pending before the Ohio Supreme Court, in which it had accepted jurisdiction on a proposition of law that essentially argued for a "good faith" exception to the 4th Amendment for warrantless searches: the exclusionary rule wouldn't be applied unless the police conduct was "the result of deliberate, reckless, or grossly negligent disregard of Fourth Amendment rights." It turns out that this isn't an argument that prosecutors are seeking to have the Ohio Supreme Court adopt; according to at least one prosecutor I've dealt with, and from what I hear from other defense attorneys, prosecutors are claiming that the U.S. Supreme Court adopted this test two years ago in Herring v. United States.
Ineffective assistance of counsel claims get a pretty good workout in appeals, but they're rarely successful. Oh, sure, every now and then there'll be a major screwup, like failing to file a motion to suppress that would obviously be successful.
But the more usual result will be that the court will recite the Strickland test -- that the defendant has to show that counsel's performance fell below accepted norms, and that he was prejudiced thereby -- go into how attorneys are presumed to be competent, chalk up any argued error as "trial strategy," talk about how the appeals court must defer to counsel on those matters, and call it a day. It's pretty unusual to see an appeals court reverse a conviction for something that clearly falls within the ambit of trial strategy or tactics. It's highly unusual to see an appeals court do that twice in three weeks. That's just what happened in the 8th District's decisions in State v. Moore and State v. Williams, both of which reversed rape convictions because the court determined that trial counsel screwed up.
Last year, I started keeping track of the reversal rate in criminal cases in the 8th. That got to be more of a bother than it was worth rather quickly; I quit doing it after about four months. The stats I had at that point showed that the State won about 85% of all cases, but only about 45% of those involving search issues.
I should have kept track of how many cases from municipal court got reversed. It had to be close to 70%, and the decision in Bedford Heights v. Boykin shows why.
The pickings from the Ohio Supreme Court are so paltry -- the big announcement this week: "The Court issued nine merit decisions without opinions, 14 motion and procedural rulings, agreed to hear six cases, and declined to hear 86 cases" -- that I've been compelled to scout the oral argument calendar for something to write about here. Best I can see is some coming up in the beginning of next month: State v. Chambliss, which raises the issue of whether denial of a criminal defendant's counsel of choice is a final appealable order, and State v. Williams, which addresses the retroactivity and ex post facto concerns of the Adam Walsh Act, an issue left over from Bodyke. Chambliss is a bizarre case, as I indicated when I discussed the 8th District's decision on it two years ago. I'll have more on it, needless to say, when it actually happens.
Nothing's actually happening in the US Supreme Court, either. I even went to the lengths of checking out SCOTUSblog list of "petitions that we're watching," i.e., cases that they think the Supreme Court might agree to hear. There's one involving the Outer Continental Shelf Lands Act, and another where the key issue is section 4 of the Endangered Species Act. You better believe I'll be focused like a laser on those. If they ever go anywhere, that is.
On to the courts of appeals, where they're not just talking about doing stuff, they're doing it.
I gave my annual Criminal Law Update seminar for the Cuyahoga County Criminal Defense Lawyers Association a couple weeks back, and it was, as usual, well-received: the laser light show was a big hit, and most participants found helpful my use of sock puppets in explaining Ohio's allied offense jurisprudence. Toward the end I got to State v. Hodge, which rejected the argument that Oregon v. Ice had implicitly overruled State v. Foster and had restored the requirement that judges make certain findings of fact before imposing consecutive sentences. The court held in Hodge that if the legislature wanted to require that, it could, but that it would have to pass new legislation to do so.
I suggested, as I have here, the implausibility of an incoming Republican governor and legislature deciding, in the midst of an economic crisis, to set as their top priority making it harder to give felons more prison time. One of the judges who was there disagreed with me, though.
And he could be right.
It ain't easy being a judge. Say you've got a high-profile murder case involving a shooting between rival gangs. The police have finally located a key witness, but he's scared to death to come in and testify, especially in a courtroom containing the defendant's gang members. There've already been altercations in the lobby between the families of the victim and the defendant, and there've been some interruptions inside the courtroom, too. Do you close the courtroom to spectators during the witness' testimony?
That's the issue addressed by the 8th District's decision last week in State v. Woods. And the case carries an especially cautionary note: if the judge gets it wrong, "notwithstanding the overwhelming evidence of [defendant's] guilt," the case is going back for retrial.
Last Friday I wrote about the Ohio Supreme Court's decision in State ex rel. Cordray v. Burge, in which the court vacated a judgment of acquittal granted 15 years after the verdict. The process which resulted in that acquittal began when the defendants' attorneys noted that the journal entry didn't comply with the Supreme Court's earlier decision in State v. Baker, which held that the entry must contain both the guilty finding (by verdict or plea) and the sentence. I mentioned that Burge left hanging the question of the effect of such an error on appeals, but one of the unnumbered legions of my regular readers, a sharp young lad with the state public defenders office, tipped me off that there is indeed a case in the pending before the Ohio Supreme Court which presents that very issue.
Good news for my mother and her cell phone, bad news for Daniel Clark and his chances of getting that free car wash. The court seems to be hitting its stride on allied offenses in the wake of State v. Johnson. Of the 25 criminal cases handed down by the 8th last week, there was but a single victory for defendants, but it was a biggie: a reversal of an attempted murder conviction because the judge closed the courtroom to take the testimony of a single witness. We'll talk about that tomorrow; in the meantime, as Paul Harvey would say, here's the rest of the story.
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