March 2011 Archives
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.
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.
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.
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 This was reversed in a three-paragraph unpublished opinion by the 9th, with no discussion of the facts or the reasoning of the three other courts which had considered the matter.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...
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."
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.
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.
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.
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. Gant. Tolentino 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...
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.
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