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March 2011 Archives

Slippery slopes

If you're appealing a case, there are two questions you don't want to hear a judge asking you in oral argument:  whether if the court rules in your favor, it'll be opening "the floodgates of litigation," or it will be setting up a "slippery slope."

Wednesday's argument in the Supreme Court in J.D.B. v. North Carolina featured the latter.

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A week too long

As the Fortunes sang back in 1965, "You've got your troubles, I've got mine."  (And through the miracle of YouTube, you can take a walk down Memory Lane and compare then with now.)  Jerome's trouble is the drug case he picked up:  after a controlled buy of $20 worth of crack, the cops got a warrant for his house, and found just under ten grams of the stuff in his bedroom.  Good luck, bad luck:  over ten would have made it a second degree felony, but the fact that his two kids, both under 18, were in the house makes it a second degree felony anyway. 

The prosecutor's trouble is that the search is bad. 

My trouble is convincing the judge of that.

Continue reading "A week too long" »

What's Up in the 8th

Last year, the Plain Dealer ran a series of articles claiming that County Prosecutor Bill Mason consistently pursued prosecutions that were, as they say in the appellate courts, "devoid of merit."  As I mentioned when I discussed the articles, I didn't find much support for the contention; in my experience, Mason's office was no more guilty -- pardon the word choice -- of presenting questionable cases than any other prosecutor's office I've dealt with.

I did indicate, though, that the office had a penchant for overindicting, and the defendant in State v. Taylor can certainly confirm that.

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Case Update

Most US Supreme Court watchers know that the Court has long delighted in playing smackdown with the 9th Circuit, and it did so again last week in Felkner v. Jackson.  It could hardly be faulted.  Jackson had raised several Batson challenges at trial, which were rejected on appeal through the California courts.  Jackson then filed a habeas action, but the Federal district court, noting that the standard was whether the state court adjudication "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding," held that it did not.  This was reversed in a three-paragraph unpublished opinion by the 9th, with no discussion of the facts or the reasoning of the three other courts which had considered the matter.  The Court unanimously reverses, the per curiam opinion labeling the 9th's decision "as inexplicable as it is unexplained."

In other action, the Court had oral argument in J.D.B. v. North Carolina, which poses the question of whether a minor being interrogated at a school by a police officer need be advised of his Miranda rights.  I'll have more on that later this week.  The Ohio Supreme Court issued no decisions, but the missing persons bulletin on them was recalled when they appeared on Tuesday for oral argument.

Apparently, some judges on the appellate courts were MIA as a result of St. Patrick's Day festivities last week; not much going on there, either...

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Friday Roundup

Sticking it to Allstate.  What's up with car insurance companies?  It used to be that businesses chose a particular spokesman, and stuck with him (or her) until they decided to get a new one.  Progressive, for example, is doing nicely with Flo, the bubbly but incredibly annoying clerk at the big Progressive store that looks like a computer software store, except that all of those went out of business years ago.  But GEICO finds a need to have no fewer than three:  the gekko, the eyes on the stack of money, and the Rod Serling wannabe.  Allstate also had limited itself to one, Dennis Haysbert, whose cred as a spokesman was substantially heightened by his stint as president on 24.  (Let's put it this way:  Allstate certainly didn't hire him based on his role, shown here, as crazed Latino slugger Pedro Cerrano ("bats are frightened") in Major League.)  But now they've added another, too:  actor Dean Winters, who plays bad cop to Haysbert's good cop (good pitchman/bad pitchman?) by explaining all the mayhem that can be avoided if you have an Allstate policy.

Of course, as my buddy Brian Wilson points out on his Personal Injury Blog, there's some mayhem buried in Allstate's policies, too, like its "family member" exclusion:  basically, if you're a passenger in a car driven by your teenage son, and he gets into an accident causing you substantial injuries, you're out of luck -- the policy doesn't cover that.  I'd thought that all insurance companies had adopted that provision, but no:  Nationwide, Grange, Motorists, and Central Mutual don't have it.

I'll have to check with the eyes, the gekko, and Rod Serling to see if GEICO has it.

All we need is Oprah.  You know the routine.  It's a medical malpractice case, and the plaintiff puts on his experts, several doctors who testify that the defendant's medical practices could only be described as medieval, and that as a result the plaintiff suffered horrific injuries which will affect him in his every waking moment for the remainder of his life.  Then the defense puts on their experts, who testify that the defendant makes Marcus Welby look like the guy on the left, and that not only did the inadvertent severance of the plaintiff's pulmonary artery during surgery not do any damage, but, in a physiological miracle heretofore never observed in the annals of medicine, actually made him better. 

Wouldn't it be fun if all of them got to take the stand at the same time?

Welcome to "concurrent evidence," which also goes under the misleading name "hot-tubbing."  Instead of serially presenting the experts, they testify as a group, subject to examination by both sides and the judge and, in some cases, are even allowed to ask each other questions.

The practice originated in Australia, has been authorized by court rule in Canada, and is being implemented on a small scale in the United Kingdom.  The results have been mixed.  In some cases, especially ones involving numerous experts, there has been a substantial savings of time.  Judges seem to like the procedure, because it allows them to see and hear everything at once, rather than try to remember during one expert's testimony what another one said the previous week.  And it does take a lot of the partisanship out of the procedure:  experts on a panel with others tend to take a more scholarly approach to the questions raised.  On the other hand, there are some big procedural hurdles.  Opening up a group discussion creates informalities that can easily lead to the introduction of otherwise admissible evidence.  And a more aggressive expert can dominate a panel discussion, which may lead an attorney to select an expert with greater emphasis to more charismatic personality traits, rather than expertise or special knowledge.  (Like that doesn't happen now anyway.)

Still, don't look for the procedure to be imported into the US anytime soon.  The countries mentioned make much greater use of bench trials, especially in complex civil litigation, and the approach works better when the fact-finder does most of the questioning, which isn't really possible in a jury trial.  In fact, having judges take over the questioning presents a major problem, even in countries which have adopted it; as one judge commented, "Assuming the judge has an active interest in ferreting out the truth and the experts are candid, I prefer the hot-tubbing option.  But those are two bold assumptions, and the procedure drives the attorneys nuts."

Will you take a check?  The US national debt is now a bit over $14.25 trillion.  Depends on when you read this; as this real-time chart shows, it's increasing even as we speak.  That works out to almost $46,000 a citizen, which is a lot of money, even for one so jaded with wealth as myself.  Still, it's peanuts compared to what record companies believe Lime Wire owes them.  Lime Wire, for the uninitiated, is a program which allows computer users to share files --like, oh, music files -- over the Internet.  Back in May, the record companies won summary judgment in a copyright infringement suit, and they just recently filed their request for damages.

And what are those damages?  Well, the record companies could try to show actual damages, that because of Lime Wire the record sales for some rock group of limited-talent nobodies was less than it would otherwise have been.  Good luck with that.  Or it could rely on statutory damages, which Congress has pegged at a maximum of $150,000 per violation. 

The record companies alleged that over 9,500 recordings were infringed through Lime Wire, so you just multiply $150,000 by 9,500, and that's the maximum damages, right?   That comes to $1.4 billion, which ain't too shabby; if I won a judgment for a client for $1.4 billion, I would probably take the rest of the day off, "rest of the day" in this context meaning "rest of my natural life, and maybe more."  But that's why I drove a Honda Accord to work this morning, instead of being heliported to my office.  The attorneys for the record companies argued that they were entitled to $30,000 times the number of times those files were downloaded by individual users, which could number in the millions, resulting in a potential award of $75 trillion.

Alas, last week, Federal District Judge and former Playboy Bunny-in-training Kimba Wood (no, I am not making that up; Google it, and check out the picture) handed down an opinion rejecting the record companies' theory of damage entitlement, noting that it would be "more money than the entire music recording industry has made since Edison's invention of the phonograph in 1877."

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Collateral damage

Warren Lewis was in no mood to cooperate.  The police had responded to a call of a juvenile fight involving three girls, one of them Lewis' daughter.  They decided to charge all three, but when one officer went up to Lewis' house and asked him for information, like the address (the house didn't have a visible number), Lewis clammed up and went inside.  For that he was charged and convicted of obstructing justice.

The 8th District had no problem deciding that was bogus; in fact, in a rare en banc decision, all twelve judges agreed on that.  What raised a question was whether Lewis' case had been mooted by the fact that he'd paid the $100 fine and served the six months inactive probation.  And that question plopped into the lap of the Ohio Supreme Court yesterday.

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One in the L column

They don't call it an adversarial system of justice for nothing.  If you're going to go to trial, you need to have confidence in your case; juries can smell doubt.  The problem, though, is that if you're not careful you can develop more confidence than is warranted.

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What's Up in the 8th

This week, we learn that there are no hard and fast rules:  sometimes it's better to try a case to the bench, and sometimes it's better not to appeal at all.  The court takes another look at Arizona v. Gant, and decides the alpha and omega of plea hearings.  And we learn that criminal cases are not the only ones which tend to be recycled through the justice system.

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Case Update

No decisions by SCOTUS this past week, but a couple of interesting 4th Amendment cases on the docket for argument on Monday, one on the fruit-of-the-poisonous tree doctrine, and the other a sequel to Arizona v. GantTolentino v. New York is the former:  Tolentino was stopped by the police, and, after they ran a records check, they found he was driving with a suspended license and arrested him.  Tolentino argued that the initial stop was unlawful -- a point still not addressed -- and that the records check should have been suppressed because of this.  The New York courts disagreed, holding that evidence need not be suppressed when "the only link between improper police activity and the disputed evidence is that the police learned the defendant's name."

In Davis v. US, police had searched Davis' car after his arrest, and the search was upheld in reliance on the Court's 1981 decision in New York v. Belton.  While Davis' case was on appeal, though, the Supreme Court overruled Belton in Arizona v. Gant.  No matter, said the 11th Circuit; the police had relied in good faith on Belton, and so the exclusionary rule didn't apply.  The Court has been expanding the good faith exception to the exclusionary rule since creating it with its 1984 ruling in US v. Leon, and there's sentiment on the Court to do away with the exclusionary rule altogether.  We'll take a look at the oral argument later in the week to see what it portends.

Down in Columbus, rumors abound as to the explanation for why we're three months into the year and have seen less than half a dozen non-disciplinary decisions from the Supreme Court:  four members of the Supreme Court have formed a rock band and are currently embarked on their "No Justice, No Peace" tour; the members are immersed in bracketology as Ohio State enters the NCAA tournament as the No. 1 team in the country.  But wait!  The court has eleven cases scheduled for oral argument on Tuesday and Wednesday!  Half are utility cases, tax appeals, or disciplinary matters, but some of the others are more interesting, and it's better than nothing.

Meanwhile, the courts of appeals continue to toil in relative anonymity, except here...

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Friday Roundup

More on child porn sentencing.  I was scheduled to start a civil trial a couple weeks back, but when I got to the courtroom, I found three TV cameras and assorted journalists in the jury box.  They weren't for me or my case, of course; they were for the sentencing of Robert Bonness, a retired Cleveland policeman who'd been charged with attempted rape and child porn.  He'd contacted someone on Craigslist who'd offered his 12-year-old daughter for "services."  Of course, there was no 12-year-old daughter; when Bonness showed up at the hotel for the assignation, he was arrested.  Cops found dildoes, vibrators, and several sexual accoutrements in his car, and he told the police they could find plenty of child porn on his computer at home.  They did.

The sentencing took about an hour.  Bonness had done several things to further hurt his cause.  (As if trying to hook up with a 12-year-old, telling the "father" that he wanted a girl "who swallowed," wasn't bad enough.)  One was using his position as a cop.  Limewire is a computer file-sharing program which is commonly utilized by child porn users to swap files; Bonness found out about it after helping in a raid on another porn user's computer, and later downloaded and installed the program on his own computer.  He'd also apparently used his police training to surveil the hotel parking lot.  Then there was the little touch of using his badge number as part of his email address. 

Another problem was the whole responsibility thing.  Bonness' presentence report contained his statement that he felt like he'd been a fish in Lake Erie minding his own business when somebody dropped in a hook with a big worm, obviously reference to the fake Craigslist ad.  He'd also apologized profusely for allowing his "curiosity" to get the better of him.

Well, I'm sorry.  I consider myself a reasonably curious person, but that has never extended to wondering what it would be like to watch sex acts involving six-year-0lds.  And the few times I've used Craigslist, I don't remember seeing an ad offering the sexual services of a twelve-year old girl, but I'm pretty sure if I had I wouldn't have regarded that as an enticement.

Still, there was an air of Kabuki theater as the participants performed their respective roles.  The defense attorney made an eloquent plea for leniency, the prosecutor spared no effort in informing the judge and the assembled television cameras of the depth of the community's outrage, and the judge imposed the 52½ sentence with the appropriate degree of solemnity.  To a certain extent, it was an exercise in pointlessness; for a 53-year-old former cop convicted of a child sex offense, anything over fifteen years was likely to be a death sentence. 

Child porn still presents one of the troubling areas of sentencing law, as I'd mentioned in a previous post.  The Federal sentencing guidelines on the subject have come under withering criticism, including a detailed study by Federal public defender Troy Stabenow, who argues that the guidelines have no empirical basis.  (His paper can be found here.)  The 11th Circuit rejected that argument last week in US v. Dean, noting a distinction between downloaders and producers; in that case, they affirmed a 30-year prison term for someone who made videos of him sexually abusing his stepdaughter and then shared them with others on the Internet.  And US District Judge Jack Weinstein has prepared a draft of an opinion arguing that a 5-year sentence for a 19-year-old accused of downloading child porn would be cruel and unusual punishment, and is instead proposing a sentence half that.

By the way, don't expect to read a recap of the judge's opinion here.  The draft is 420 pages.

Can I have another helping of dead flesh, please?  You can't blame meat producers for being a little skittish.  Books like Fast Food Nation and Food, Inc. highlight not only the concerns over how our meat-laden diet makes us fatter, but how it poisons our environment as well.  Videos made by groups like PETA abound on the Internet, documenting the often horrific conditions under which chicken and cattle are raised by factory farms.  The percent of the population that regards itself as vegetarian is still only 3%, but that's tripled in the past twenty years.

So what's a poor farmer to do?  Well, you can always sue:  at least thirteen states have passed "agricultural product disparagement laws."  They were used in the famous suit against Oprah Winfrey by some Texas cattle producers back in 1996 when one of her guests warned of the possibility of mad cow disease spreading from England to this country.  And you can try to keep those pesky bleeding-heart do-gooders from interfering in your operations by pre-empting them, like Ohio did in 2009, when our citizens deemed it appropriate to pass a constitutional amendment creating something called the Ohio Livestock Care Standards Board, which was tasked with the chore of... well, creating standards of care for livestock.  The real purpose was explained by David Martosko, head of the Center for Consumer Freedom, a front group for various business interests, who argued that the board was necessary to ward off the threat that the Humane Society -- which, according to Martosko, is "basically PETA with a nicer wristwatch" -- poses to the agricultural community. 

But Florida recently decided to up the ante considerably:  a bill has been recently introduced there which provides that

A person who photographs, video records or otherwise produces images or pictorial records, digital or otherwise, at or of a farm or other property where legitimate agriculture operations are being conducted without the written consent of the owner, or an authorized representative of the owner, commits a felony of the first degree.

Whoa!  That means if I happen to be driving down I-95 behind someone with blue hair, twenty miles below the speed limit, and I decide to lean out the window and take a picture of Old McDonald's Farm, I can do up to 30 years in prison.  The offered justification?  To protect farmers "intellectual property," and, more particularly, to keep people from making those videos which keep cropping up -- no pun intended -- on the Internet.

It should be noted that the sentence for violation of this statute is longer than the one that could be imposed for manslaughter.  Which one could be convicted of, for example, by bludgeoning a slow-moving driver.

Continue reading "Friday Roundup" »

Hard cases

In doing this blog, I read a lot of cases.  The downside to that is, I read a lot of cases.   It's not at all unusual to find decisions that are result-driven:  that is, cases where obvious errors are brushed aside because of the overwhelming evidence of the defendant's guilt.  And it's not just that those errors are dismissed as harmless; many times I've seen courts come up with legal rulings to justify a particular outcome.

Sometimes, that works in reverse:  a defendant's obvious innocence may lead a court to come to a legal result it otherwise might not have.  That may have happened last week in the 8th District's decision in State v. Snyder

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Walking Melendez-Diaz back?

Curt Caylor and Gerry Razatos worked at the New Mexico Health Department's Toxicology Bureau back in August of 2005, and when someone brought in a blood sample for Donald Bullcoming, who'd been driving a truck that rear-ended another vehicle, Caylor put it in the gas chromatograph machine and ran the test.  When the machine spit out a number, he put that down on a report and signed it.  At the trial, the state offered the report, and a witness to testify as to its contents.  The witness wasn't Caylor, though, it was Razatos.

Bullcoming was convicted of aggravated drunk driving, and sentenced to two years in prison.  From that point on, the case worked its way through the courts, and Bullcoming thought he caught a break when the Supreme Court handed down its decision in 2009 in Melendez-Diaz v. Massachusetts, holding that admission of a certificate of a drug analyst, in lieu of his live testimony, violated the defendant's confrontation rights under Crawford v. Washington.  The New Mexico high court agreed that the lab report in Bullcoming's case was testimonial, but held that Razatos' appearance gave Bullcoming's lawyers a sufficient opportunity for cross-examination regarding the report.

So a couple weeks back, the Supreme Court heard argument on whether that was the right call.

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What's Up in the 8th

There's a valid argument to be made that the present law on post-release controls couldn't be more stupid if it had actually been designed to work the way it does.  What would have happened if the Ohio Supreme Court had ruled differently in Woods v. Telb, the 2000 decision in which they upheld the constitutionality of PRC?

Well, for one thing, at least one judge on the 8th District would have lower blood pressure.

Continue reading "What's Up in the 8th" »

Case Update

Two years ago, in District Attorney v. Osborne, the Supreme Court ruled that prisoners do not have a constitutional right to access to DNA evidence which might prove their innocence.  Last week in Skinner v. Switzer, the Court opened the door they'd seemed to have slammed shut in Osborne, but ever so slightly:  the inmate is not limited to habeas corpus in such matters (the avenue taken by Osborne), but may pursue the matter in a Section 1983 civil rights action.  Actually, the opinion says only that the Federal courts have jurisdiction to consider the case; the numerous arguments the State has in opposition to the request will now be considered. 

The only other decision from DC was Wall v. Kholi, which answered the question of what was "collateral" as opposed to "direct" review for habeas corpus.  This was critical for Kholi's habeas petition.  Such petitions have to be filed within one year of the judgment becoming final, but the time is tolled during the pendency of any collateral proceedings in the state courts, such as post-conviction relief.  The State argued that Kholi's state petition to correct or reduce his sentence was really a plea for leniency, and thus did not constitute the seeking of collateral review.  As Robert Benchley once observed, there are two kinds of people in this world:  those who believe there are two kinds of people in this world, and those who don't.  The Court borrows a page from Bentley and concludes that there are only two kinds of judicial review, direct or collateral, and if it's not one, it's the other.  There's no Door No. 3.  The review in Kholi's case was not direct, so ipso facto, as the Romans would say if they weren't all dead, it had to be collateral.

That's two more decisions than came out of Columbus, unless you count smacking down miscreant attorneys and a case involving utility rate hikes.  Which I don't.  So let's see what happened in the courts of appeals...

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Friday Roundup

Gun rights update.  A few months back, I highlighted a common pleas decision here dismissing a weapons under disability charge in a case.  The disability had been based on a 1991 misdemeanor marijuana conviction, and the court ruled that disqualifying the defendant from owning a gun on that basis violated his Second Amendment right to bear arms for self-defense, under the Supreme Court decisions in District of Columbia v. Heller and McDonald v. Chicago

That's one of the few decisions to strike down a disability law, but the 3rd Circuit came close last week in US v. Barton.   Most notable is the court's treatment of the language in Heller and McDonald that certain limitations on gun rights, such as "longstanding prohibitions on the possession of firearms by felons," are "presumptively lawful."  Some courts have treated this as mere dicta, but the 3rd disagreed; on the other hand, "presumptively lawful" means the presumption can be rebutted, and Barton could therefore mount an "as applied" challenge to the law.  To do that,

Barton must present facts about himself and his background that distinguish his circumstances from those of persons historically barred from Second Amendment protections.  For instance, a felon convicted of a minor, non-violent crime might show that he is no more dangerous than a typical law-abiding citizen.  Similarly, a court might find that a felon whose crime of conviction is decades-old poses no continuing threat to society.

Barton didn't have those facts:  he'd been convicted of cocaine trafficking, and his self-defense claim -- on a charge of illegally selling firearms -- was somewhat muddied by the fact that the cops found seven pistols, five rifles, and three shotguns when they raided his house.

The problem with arguing Barton, of course, is the outcome:  you'd essentially be using a case which goes against you to support your position.  How you spin cases, on the other hand, is the art of appellate law, and Barton, especially in its analysis of some of the history of weapons disability laws, is of some assistance where, at least at present, very little can be found.

Dog update.  Last week I talked about canine searches, highlighting some arguments that dogs sniffs for narcotics aren't as accurate as a lot of people think they are, especially the "lot of people" on trial and appellate benches who decide the constitutionality of searches initiated by dog alerts.  The problem, as I mentioned then, was that we're only talking about probable cause.  So what if a dog gives false positives twenty, thirty, or even fifty percent of the time?  That's still more than sufficient to meet the probable cause threshhold.

Well, maybe not.  Ever hear of Bayes Theorem?  Some lawyers who had presented a paper and a sample brief on the subject to the Wisconsin State Public Defender's Annual Convention five years ago had, and you can read it here.  The very, very short version is that the Theorem addresses "conditional probability":  the probability of a certain event occurring as you introduce more data.  For example, let's say you have a test that is 98% effective in detecting a particular disease.  But what if it's a rare disease, occurring in only one person in a thousand?  That means if you test 1,000 people, 20 of them (two percent) will test positive, while only 1 has the disease.  In other words, 19 of the 20 people have been falsely diagnosed, meaning you've actually got an error rate of 95%.

The paper and brief use that Theorem with drug-sniffing dogs, but introduce another factor into the mix:  how many cars actually have drugs.  Assuming it's a low level -- maybe one in 50 or 100 -- you can show that even with a dog whose alerts were substantiated over 88% of the time, the probability that an alert means there are actually drugs in the car is less than 13%.

At least that's what the brief and paper say.  For your next case involving dogs and drugs, you can copy the appropriate sections, insert your facts, and submit your own brief on the whole thing.  This will have one of two effects:

  • The prosecutor and the judge will be so confused by this, but so impressed by the belief that you have the necessary brainpower to understand it, that they will offer you the plea bargain you want
  • They will laugh at you and call you names, and possibly even give you a wedgie for being such a nerd

Memory Lane.  Even an attorney who hasn't seen the inside of a law school for thirty years can tell you the facts of Palsgraf v. Long Island RR Co.  Mrs. Palsgraf was standing on a train station, minding her own business, when some thirty feet away two train guards helped a man carrying a small package board the train.  They did a shoddy job of it, and he dropped the package.  It contained fireworks, which exploded, causing scales at Mrs. Palsgraf's end of the platform to fall and strike her, causing her injuries.  The question was the foreseeability of the harm:  could the railroad guards have reasonably foreseen that anything they did with the passenger could harm Mrs. Palsgraf?  The New York Court of Appeals, in an opinion by Benjamin Cardozo, said no in 1928, and ever since then, generations of law students have sat mutely while their Torts prof droned on about the case.

Apparently, Palsgraf wasn't part of the curriculum at the law school attended by the attorney of the estate of Roger Kreutz.  Kreutz, 54 at the time, was in a Starbucks coffee shop on March 3, 2008, when he saw a teenager snatch the tip jar from the counter.  Kreutz gave chase, but when the thief backed his car out of the parking space, he knocked Kruetz to the pavement.  Kruetz died two days later of head injuries, and the thief did a year in jail after pleading to involuntary manslaughter.

So on Tuesday Kruetz's estate filed suit.  Against Starbucks.  After all, they should have known that by placing a tip jar on an open counter, they ran the risk that (a) someone would steal the tip jar, (b) a customer would pursue the thief, and (c) be injured or killed in that pursuit.

I'm pretty sure I know how Benjamin Cardozo would have ruled.

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Right to counsel; Bodyke, continued

Tip O'Neill, the Democratic Speaker of the House during the Reagan administration, once said that his most important job requirement was the ability to count to 218, which, of course, was a majority of the House.  For a lawyer arguing a case before the Ohio Supreme Court, the arithmetical challenge isn't nearly as steep:  you only have to count to four.  When you're a prosecutor, though, and you're standing there playing whack-a-mole with Justice Terry O'Donnell and Chief Justice Maureen O'Connor, two normally reliable conservative votes, and you're the mole, you know you're in trouble.

Continue reading "Right to counsel; Bodyke, continued" »

Walking Crawford back

In Crawford v. Washington in 2004, the Supreme Court handed down perhaps the most significant decision on the 6th Amendment's Confrontation Clause, holding that "testimonial statements," even if they fell within a hearsay exception, were barred at trial unless the defendant had the opportunity to cross-examine the maker of the statement.  The Court gave a loose definition of what constituted a testimonial statement -- an ex parte statement to a government official -- but didn't delve deeper into the question because it didn't need to.  The statement at issue in Crawford -- his wife's written statement to the police as a result of a lengthy interrogation at the stationhouse -- would have fit into anyone's definition.

But the definition of a testimonial statement eventually had to be fleshed out.  The Supreme Court did just that last week in Michigan v. Bryant, and in doing so, may have left little more than a skeleton of Crawford.

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What's Up in the 8th

The State pushes the envelope of the 4th Amendment, and the court pushes back.  We get Biblical this week, and follow the Psalm in noting that for everything there is a season:  a time for war, a time for peace, a time for raising speedy trial issues or filing a motion to vacate a judgment.  And there's also a time when you shouldn't answer a cell phone, specifically, after you've just stolen it.

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Case Update

Busy week for the Supreme Court.  The one in DC, that is.  In addition to the big decision in Michigan v. Bryant on the scope of Crawford v. Washington, which we'll discuss on Wednesday, there were a spate of other decisions as well.  In Pepper v. US, the Court held that post-sentencing rehabilitation could indeed be considered for sentencing purposes.  When I'd discussed the case briefly here, I'd suggested that regardless of the law, that would be the right result, and six of the eight justices agreed.  (Justice Kagan recused herself, as she has in about a third of the decisions so far, because of her prior status as solicitor general.)  In Snyder v. Phelps, the court handed down a widely-anticipated result, that the First Amendment protected the members of the Westboro Baptist Church, whose belief system leads them to the lunatic conclusion that God is punishing America because of its tolerance of homosexuals, which results in them picketing the funerals of American soldiers killed in Iraq or Afghanistan with signs proclaiming that "God Hates Fags."  For good or ill, one does not need to pass an IQ or logic test before asserting his free speech rights, and only Justice Alito could be found in dissent. 

In FCC v. AT&T, the latter company had claimed that certain of its records shouldn't be subject to discovery under the Freedom of Information Act on the grounds that disclosure would "constitute an unwarranted invasion of personal privacy," one of the grounds specified for exemption in the Act.  The court unanimously rejected the argument that a corporation was entitled to privacy under this theory, and just to show that it has a sense of humor, concluded the opinion thusly:

The protection in FOIA against disclosure of law enforcement information on the ground that it wouldconstitute an unwarranted invasion of personal privacy does not extend to corporations.  We trust that AT&T will not take it personally.

No laughs to be found in any of the opinions out of Columbus.  No opinions, for that matter, although there were some interesting oral arguments, which we'll discuss on Thursday.  On to the courts of appeals...

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A Man's Best Friend

The state highway patrolman spots the car with Michigan plates eastbound on the Ohio Turnpike.  He sees the car change lanes without putting on its turn signal, so that's enough for a stop.  Talking to the driver and checking his license takes a little while, and the cop draws it out so that the other officer, the one with Rover, the drug-sniffing dog, can get there.  Rover takes a stroll around the car, then agitatedly begins pawing at the trunk.  The cops open the trunk, and find nothing.

Two days later, the exact same scenario unfolds, and this time the cops find five sealed bags containing seven kilos of Columbia's finest non-coffee export.  The defense files a motion to suppress, but the law is that the dog sniff isn't a search, and the dog's alert provides probable cause to conduct a search of the trunk.  End of story.

Of course, the judge never knows about what happened two days earlier.

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Other acts

There are few things more vexing for defense attorneys, especially in child sex cases, than "other acts" testimony under EvidR 404(B).  You have a hard enough time explaining to the jury why some 12-year-0ld is claiming that your client made her do nasty things, and then the prosecutor puts on another 12-year-old to say that your client did nasty things to her, too.

Stephen Ogletree found himself in that situation.  Ogletree owned a house where a mother and her twelve-year-old daughter lived.  The daughter claimed that Ogletree began helping her with her homework, but that his "help" soon devolved first into fondling, then rape.   At trial, the state produced another witness, also a previous tenant of Ogletree's, who claimed that when she was 16, Ogletree asked her to come inside to help fix a light bulb, and when she did, touched her buttocks and vagina.  Despite the fact that Ogletree had been charged in that incident and acquitted, the judge let it in.

Last week, in State v. Ogletree, the 8th District decided that was the wrong decision.

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Unlucky punch

Branch Rickey famously observed that luck is the residue of design, so it may be that bad luck is the residue of lack of design.  Walter Triplett, Jr. didn't have a lot of luck growing up on the streets of Cleveland, but he didn't do much to improve it.  By the time he was 23, he'd already done four stints in the joint, and then he picked up two more cases, one for drugs and one for felonious assault with a gun, and did another three years.  By the early morning hours of April 30, 2009, he'd managed to stay out of trouble for nine months, the longest period of his adult life.  So when he got into a fight outside the Barley House, a local Cleveland pub, and punched Michael Corrado, it wasn't likely that the Fates would be smiling.

They weren't.  The single punch sent Corrado to the pavement, where his skull fractured.  He was on a ventilator for 18 hours before he died.  Triplett was charged with involuntary manslaughter and felonious assault.  Someone, maybe Corrado, had thrown a punch at Triplett's sister, and Triplett's claim was that he was defending her.  The jury didn't buy it, convicting him of the felonious assault and deadlocking on the manslaughter.  The judge maxed him out on the assault with eight years, and then tacked on the maximum ten for the repeat violent offender specification.

But last week, Triplett's luck took a major turn for the better, when the 8th District reversed his conviction and sent the case back because the instructions on self-defense were messed up.

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What's Up in the 8th

Criminal defendants live large this week, winning three of fourteen felony cases.  Yes, I know that doesn't sound like a big deal, but considering that was the total for the previous three weeks combined, it is.  And while rarely a week goes by that some decision or another from the 8th causes me to furrow my brow in puzzlement, shock, or horror, not so this week:  good work abounds.  In fact, two of the decisions are so notable that they merit individual treatment, which they'll get tomorrow and Thursday.  Let's take a look at the others.

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Recent Entries

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