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.  (keep reading…)

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. (keep reading…)

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. (keep reading…)

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… (keep reading…)

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.

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.  (keep reading…)

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. (keep reading…)

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. (keep reading…)

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… (keep reading…)

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. (keep reading…)