April 2011 Archives
Dear Briefcase... Although this blog is read primarily by lawyers -- particularly the subset of lawyers who have nothing better to do -- I've also tried to include helpful information for the criminal element who might stumble through here. Don't wear sagging pants, I cautioned; there's a time and a place for everything, but it isn't the time or place for looking ultra-gangsta if doing so hinders your escape from a bank robbery or, even worse, causes you to plummet to your death after committing a triple homicide. If you've committed a particularly heinous violent crime, invest in a pair of glasses: jurors are much less likely to conclude that you're capable of such a thing if you look like a nerd.
Well, here's this week's tip: just because you were overly impressed with the murder you committed to make your bones with your gang doesn't mean you should memorialize the event by getting the scene tattooed on your chest. That's what Anthony Garcia did, according to this article. After Garcia had been arrested on a traffic violation, police had photographed Garcia's tattoos, as they do with suspected gang members. In doing a routine review those photos, a homicide detective came across Garcia's depiction of a 7-year-old killing, which was accurate down to the details: "the Christmas lights that lined the roof of the liquor store where 23-year-old John Juarez was gunned down, the direction his body fell, the bowed street lamp across the way and the street sign." Garcia ultimately confessed, and was convicted.
I guess Garcia has a better understanding now of why people in medieval times preferred wall hangings to describe momentous events.
There are frivol0us appeals, and then there are frivolous appeals. In the latter category, we have Gallop v. Cheney, in which the 2nd Circuit affirmed the dismissal of Gallop's lawsuit, which alleged that Dick Cheney, Donald Rumsfeld, and various other government officials conspired to falsely claim that American Airlines Flight 77 crashed into the Pentagon on September 11, 2001. The purpose? To “generate a political atmosphere of acceptance in which [the government] could enact and implement radical changes in the policy and practice of constitutional government in [the United States]” and to conceal the revelation that $2.3 trillion in congressional appropriations “could not be accounted for” in a recent Department of Defense audit.
No indication of whether her lawyer appeared for oral argument wearing a tinfoil hat, but he'll have less money to buy one: the court sua sponte ordered him to show cause within 30 days why he and his client should not have to pay sanctions of $15,000 for filing a frivolous appeal.
As the guy said, in these times it's difficult not to write satire. With a hat-tip to Overlawyered comes this story from the Scranton Times-Tribune, informing us that the city's police union has filed an unfailr labor practice complaint because the police chief made an off-duty drug arrest.
The complaint, which was filed with the state Labor Relations Board on April 14, takes issue with the chief arresting a man who was allegedly in possession of marijuana because the chief is not a member of the collective bargaining unit and was "off duty" when the March 20 arrest was made.
The complaint states that "the work of apprehending and arresting individuals has been the sole and exclusive province of members of the bargaining unit," and that the city did not inform or negotiate with the union that the chief would be "performing bargaining unit work."
Yet another reason not to do divorce work. Because you can wind up in depositions like this one.
Wonder how she's going to rule on suppression motions from here on out. From the ABA Journal:
Sent to the wrong address on Easter Sunday concerning a reported burglary in progress, officers from the Broward County sheriff's department held a Florida judge briefly at gunpoint, along with her sister and other family members, after mistaking the relatives for burglars as they cleared up after their holiday meal.
Broward Circuit Court Judge Ilona Holmes also was legally armed and drew her firearm while still inside her sister's home, thinking that a responding officer rapping on the kitchen window with a gun was the burglar her sister's neighbors had just phoned to warn them about, according to Fox News and NBC Miami.
Although the judge's sister says she and Holmes identified themselves while still inside, the family was ordered outside as officers pointed their weapons at them. The judge was then surrounded by armed officers shouting at her to put down her weapon, which she had warned them she was carrying, as they held her at gunpoint, according to her sister, Carmita Scarlett.
Your assignment for the weekend is to discuss the significance of the following paragraph in the story:
When a senior officer recognized the judge, however, he told the others to lower their guns. Holmes is one of a very small number of black judges in the county, NBC Miami noted.
As every schoolboy learns, the Framers didn't initially include in the Constitution many of the rights we presently take for granted. It was only after doubts were raised as to how a stronger central government might impinge on such liberties that those freedoms were added through the Bill of Rights. But certain rights were deemed so important that they were part of the original Constitution. One of them was the right to a writ of habeas corpus. Often termed "the Great Writ," and dating back to the Magna Carta, it offered a means of challenging the legality of one's imprisonment. A single Federal judge can decide that a prisoner is being held unlawfully, and order his release.
A couple of law professors think it's time to pretty much get rid of it. In an op-ed a couple weeks back in the New York Times, Professors Joseph L. Hoffman and Nancy J. King of Indiana University and Vanderbilt University, respectively, argued that habeas relief should be limited to capital cases and those in which the defendant can produce evidence of actual innocence.
The outcome of State v. Chambliss wasn't in doubt. Its impact on some other questions remains up in the air.
To refresh your recollection, as we say in the law biz, Chambliss arose from a rather bizarre set of events. Chambliss and several cohorts were charged with various drug counts, and rather than give up the name of the informant, the state gave the defendants a very favorable plea deal. The plea was taken before a visiting judge, but come time for sentencing, the assigned judge refused to accept the pleas, and set the case for trial. On the morning of trial, defense counsel informed the judge that they still hadn't seen the search warrant and affidavit, which had been sealed to protect the informant's identity, and expressed the view that they couldn't effectively assist their clients without that information. There were several remedies for this problem -- unsealing the affidavit is the one that most readily occurs to me -- but the judge instead resorted to a "Three R's" remedy: he removed the attorneys from the case, revoked the defendants' bail, and remanded them to jail.
The defendants appealed, and the 8th District had no problem reversing the remand (which it did peremptorily, just days later). The removal of the attorneys was another matter, though. Twenty years earlier, in State ex rel. Keenan v. Calabrese, the Supreme Court had held that removal wasn't a final appealable order: to press the issue, the defendant would have to go through the trial with his new attorneys, then appeal.
Apropos the Easter holidays, two family gatherings you'd probably want to skip. In Sanders v. Nationwide, the insurance company gets summary judgment in its attempt to avoid paying for the fire damage to Sanders' home, on the grounds that her son intentionally set the fire. Although Nationwide could use the boy's admission in the juvenile delinquency proceeding to establish arson, he had some emotional and mental problems, and the case goes back, because the question of insanity -- lack of intent -- for insurance cases is different from that for criminal cases. And in Chattree v. Chattree, the court affirms a directed verdict for the father on his suit against his daughter on a promissory note for $187,000, which was intended to cover the costs of renovations needed for her new apartment, the one for which he'd given her $450,000 in cash and co-signed an $843,750 mortgage.
Some cases to write about at last. The Religious Land Use and Institutionalized Persons Act is the subject in Sossamon v. Texas, the Supreme Court deciding that states don't waive sovereign immunity for private lawsuits for money damages, such as the one Sossaman, an inmate, filed regarding the prison's refusal to allow him to attend chapel services because of a disciplinary infraction. Left unanswered by the Court's opinion was the larger question: why Congress felt compelled to treat religious land use and institutionalization of persons in the same piece of legislation. The Court hears the final oral arguments for the Term next week, and someday soon I'll do a post on the big decisions which remain pending, once I figure out what they are. One of them undoubtedly concerns the 2004 Internet Sales Tax and Migratory Birds Act.
The Gang of Seven in Columbus swings back into action, too. We'll discuss their decision in State v. Chambliss later this week, and the court writes finis -- at least for now -- to the saga of Nancy Allen and Joseph Smith. As discussed here, Allen and Smith had been convicted of numerous counts of child rape in controversial trial in Lorain County in 1994. In 2008, they argued their journal entries contained a Baker violation, but instead of simply correcting the entry Common Pleas Judge James Burdge, who did not preside over the trial, reviewed the record and granted them a belated motion for acquittal under Rule 29(C). In an earlier decision this year the court reversed that, and last week denied the motion to reconsider.
In civil cases, newly-appointed Justice McGee Brown writes her maiden opinion in Loudon v. Radiology & Imaging Services, which features a somewhat muddled legal situation. Loudon, recovering from breast cancer, sued the defendants, claiming they should have diagnosed it a year earlier, and alleging that their negligence led to an enlargement of her tumor and emotional distress from the fear of an increased chance of the recurrence of the cancer. Somehow, despite the fact that Loudon had not included a separate count for emotional distress, the trial court treated her complaint as alleging only that, and granted summary judgment. Somehow, the appellate court focused on the emotional distress claim which Loudon hadn't raised, and reversed. The court straightens all this out, determining that the spread of cancer is in fact a physical injury, but that a separate claim for emotional distress stemming directly from a physical injury isn't only unnecessary, but improper: such damages can be considered in the normal context of a traditional medical malpractice claim.
There was also a decision in another civil case, Westfield v. Hunter, which has something to do with exclusions in homeowners policies for claims "arising out of" premises owned by the insured other than the insured location. In the unlikely event that you're reading this blog with the hope of keeping up with all the insurance cases, despite nothing that I've written in the past five years giving you reason to do so, give me a call and I'll pretend to explain the decision to you.
Yeah, yeah, I know. I spend the past month complaining that there are no Supreme Court decisions to write about, and then they do issue one, and I snarkily dismiss it out of hand. So sue me.
In the courts of appeals, very little new in the criminal area, besides affirmances of sentences against claims that they're excessive, and of denials of motions to withdraw pleas. But that's not new, is it? The 8th District handed down some nice decisions in criminal cases, but we'll get to those tomorrow. In the meantime...
Best of the Worst. I've mentioned that last week I attended a seminar on appellate practice, where we received instruction on how to craft the winning brief. The materials for one writer indicated that following those instructions would be the difference in winning 20% of your appeals, as is the average, and winning 51%, which is what he'd managed. Another way of keeping your winning rate well north of that of the Lebron-less Cleveland Cavaliers is to not take assigned appeals, as the writer apparently didn't. That 51% is going to plummet once you start trying to explain to a stone-faced appellate panel why the jury should have been allowed to consider your client's intoxication as a defense to his handcuffing and repeatedly anally raping his former girlfriend.
Another way of trying to maintain a winning appellate record is, if you have a case like that, not starting out the brief with this quote:
Don't worry about it... Like he said, we all do dumb shit when we're fucked up.
Now, you're thinking, Gosh, I don't remember that from Blackstone's Commentaries. Nor does it seem like the thing that Holmes or Brandeis or Scalia would have put in an opinion. You're right; a footnote in the brief rightly attributes the quote to that noted legal scholar Mike Tyson, from the movie The Hangover.
As might be guessed, using a quote from someone who himself had been convicted of rape didn't impress the court. The Montana Supreme Court's opinion, which can be read here, finds the remainder of the brief "needlessly graphic and offensive," recounts the actual facts, then concludes that
Appellate counsel's attempts to sugarcoat these shocking events as just one of Belanus and T.C.'s typical date nights that went "horribly awry" gives pulp fiction a bad name. His story is as delusional as it is unbelievable, and it is not surprising that the jury didn't buy it.
The court affirmed the defendant's life sentence, but the lawyer did win something: the general consensus among the legal blogosphere -- here and here, for example -- that this is the worst brief ever.
Or not; here's an unpublished 1st Circuit case which summarily affirms a denial of a petition for asylum because of the failings of the appellate brief, to-wit:
The brief filed by petitioners' counsel, Yan Wang, is a "cut and paste" affair that appears to present the facts of another case -- notably for a person of a different gender than [petitioner], who had different experiences, in different years, and appeared before a different immigration judge.
My personal favorite, though, was a brief filed in a 9th District case several years ago which contained, as the second assignment of error, "IN VIOLATION OF DUE PROCESS, THE GUILTY VERDICTS ON THE BUGLERY AND ASSULT WERE ENTERED AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE." Problem No. 1 was the misspellings. Problem No. 2 was that it was a drug case; there were no charges, let alone convictions, of burglary or assault. Problem No. 3 was the court realized, and noted, that appellate counsel had lifted the assignment of error verbatim, misspellings and all, from another appeal she'd done in the same court just a month before. At least that case involved a burglary and an assault, but Problem No. 4 was that the defendant in that case had been acquitted of the burglary. Er, buglery.
Discovery Update. A couple of months back, I wrote a post about State v. Biro, an 8th District case in which the court had upheld the defendant's conviction for aggravated vehicular homicide, and also concluding that the trial court hadn't erred in excluding the testimony of the defendant's expert witness. The "expert" was the detective who'd arrested the defendant; on cross-examination, the defense had qualified the detective as an expert, and then gotten him to give testimony favorable to the defendant. The 8th affirmed the judge's exclusion of the testimony because the defense hadn't provided an expert report. I noted the difficulties of obtaining an expert report from the opponent's witness, and confidently predicted that the Supreme Court would take in the case, in light of the requirements under the new discovery rules that each side provide the other with expert witness reports at least 21 days in advance of trial.
As further confirmation of my prognosticative abilities, earlier this week the court declined to hear Biro, by a narrow 7-0 vote.
But if the Supreme Court isn't going to hear that case, it's likely that sooner or later they're going to have to step in and decide some cases involving the new discovery rules, because Hamilton County Prosecutor Joe Deters has pretty much declared open war on them.
It stems from a case last year, in which a murder defendant learned the name of the state's key witness through discovery; the defendant's brother and friend used that information to track down the witness and kill him. Since then, Deters has refused to disclose witnesses in homicide cases until trial. In fact, "until trial" is interpreted loosely; one defense attorney got a list of eleven witnesses after the jury selection was completed.
And the problem goes well beyond homicide cases. It's been extended to other violent crimes, and the office has apparently adopted a policy of refusing to offer plea bargains in drug cases where the defense attorney demands discovery.
The concern over witness protection is certainly legitimate, and there are other questions which arise with the new discovery rules. Police officers often wind up testifying as expert witnesses on one subject or another, sometimes without the expectation that they will do so. Does this mean that the prosecutor should submit a CV and report for every police officer he anticipates calling? When's the due date for discovery from the defense? Is there a different date for mitigation discovery in a capital case? Why aren't there any standards for determining when the "counsel only" designation is to be used, what's the sanction for abusing it, and what's the sanction for a defense attorney's violating it?
It may be that some of these questions will be resolved by agreement between the defense bar and the prosecutor's association, and it may be that the some changes to the rules will be necessary. I'm hoping for the former, but fearing for the latter. Some prosecutors' offices have taken to stamping every discovery document they provide with the "counsel only" designation, which prevents the defense attorney from giving the document to anyone else. It does permit the attorney to "orally communicate" the contents to his client, but Deters is claiming that this does not permit the verbatim reading of the contents. If someone can argue distinctions like that with a straight face, there hopes for compromise are dwindling.
I had an arraignment the other day, always an interesting experience. It's a perfunctory ritual: your case is called, you go up with your client, mumble your name and phone number for the court reporter, then tell the judge you've had the indictment for more than 24 hours -- even if you picked it up at the clerk's office earlier that morning -- waive its reading, enter a plea of not guilty, and ask that the bond be continued. On cue, the judge intones that the plea of not guilty is entered and bond is continued, and then we come to the Main Event: the judge looks at his computer, which gives the name of the judge who will be handling your client's case.
Of the 34 judges, there are probably about three that you definitely don't want, and about a half dozen that you definitely do want, with the rest spread across the spectrum between that. The first case is called, and the lawyer gets one of those in the first category; the attorney next to me whispers, "Well, Marv took a bullet for us." There's an in-between judge for the next couple cases, and the fourth lawyer strikes paydirt. He's visibly grinning as he walks out of the courtroom.
Why is it this way? Because 95% of criminal case are going to wind up with a plea or a conviction, and that means a sentence, and the single most determinant factor in what sentence you're going to get is the name of the judge the computer spits out.
It was such a simple argument. In State v. Baker, the Ohio Supreme Court had held that under Crim R 32(C), to be a final appealable order, a journal entry "must include the sentence and the means of conviction, whether by plea, verdict, or finding by the court." That means if the journal entry doesn't include the means of conviction -- whether the defendant was convicted after a jury trial, a bench trial, a plea of no contest, or a plea of guilty -- there was no final appealable order. And if there was no final appealable order, any appeal the defendant took was a nullity, because the appellate court only has jurisdiction to hear final appealable orders.
But simple doesn't mean winning, as Stephen Lester's lawyer learned last Tuesday.
One of the favorite tests courts employ is the "totality of the circumstances." The nice thing about it is that it can justify virtually any result the court wants to reach. In a search case, for example, if it wants to find for the defendant, it will look at each circumstances in isolation, decide that each doesn't provide the requisite proof, and apply that conclusion to the whole issue. That's a mistake; sometimes, the whole is greater than the sum of its parts. There are other times, though, when "totality of the circumstances" really means "totality of the circumstance": there is one overriding factor which, if taken out of the equation, changes the entire result. That happened twice last week, with disparate results.
No new decisions from either Columbus or DC. Last week featured oral arguments before the Columbus 7. One, State v. Lester, revisits State v. Baker, which held that a sentencing entry which didn't include certain terms wasn't a final appealable order. Lester raises the issue of whether a non-Baker-compliant entry can be the basis of an appeal; in other words, is an appellate ruling from an entry which doesn't satisfy Baker a nullity, thus allowing a defendant a second "real" appeal when the Baker defect is remedied? A similar argument was made about judgments which were "void" because of defects in imposing post-release controls, and the court rejected that argument last December in State v. Fischer. Will Lester meet the same fate? I'll take a look at the oral argument later in the week.
The DC 9 were off last week, but take to the bench on Tuesday to consider a somewhat bizarre set of facts in Tapia v. US. Alejandra Tapia was convicted of smuggling illegal aliens, and argued for a minimum 36 month sentence. Instead, the judge gave her 51 months, saying that the longer sentence would allow her time to complete a 500-hour drug treatment program. Tapia now argues that the judge was wrong to take rehabilitation into account in fashioning a sentence, because that's prohibited by 1984 act which created the Sentencing Guidelines: it specifically provides that a court must consider various factors in determining a sentence, but must recognize "that imprisonment is not an appropriate means of promoting correction and rehabilitation." Thus, instead of the government arguing that a judge wrongly gave less time because he thought the defendant could be rehabilitated in prison, we have the defendant arguing that she was wrongly given more time for the same reason.
In the courts of appeals...
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