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April 2011 Archives

Friday Roundup

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.

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The Great Writ

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.

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Chambliss and the right to counsel

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.

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What's Up in the 8th

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.

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Case Update

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...

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Friday Roundup

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.

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What to do about sentencing

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.

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Baker Revisited/Revised

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.

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What's Up in the 8th

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.

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Case Update

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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Friday Roundup

Good writing.  I took a seminar yesterday in appellate practice, which featured several sessions on brief-writing, accompanied by the usual bemoaning of the lack of quality writing among lawyers.  I agree with that criticism, although my own take is that one of the reasons lawyers don't write better is because they spend so much time reading judicial opinions, which one commentator termed "the largest body of poorly written literature ever created by the human race."  I found especially interesting some of the "do's" and "don't's":  minimize use of the passive tense, use plain English, don't spend a lot of time telling judges law that they already know, like what the standard is for determining insufficiency of the evidence.  The 8th District used to be notorious for issuing opinions which devoted paragraph upon paragraph to setting forth the law on insufficiency or ineffective assistance of counsel, although they've gotten much better about that; compare this opinion from last year, which devotes six paragraphs and the better part of two pages to the law on insufficiency, with these two -- here and here -- from last week, which happily dispense with all that legal mumbo-jumbo in a mere sentence. 

Of course, then you have judges who go off the deep end in the other direction, as demonstrated by the opinion described in this article, which begins,

Handguns and drug deals are frequent companions, but not good friends. Rip-offs happen. Shootings do too. Caveat emptor. Caveat venditor. People get hurt. People get killed. Sometimes, the buyer. Other times, the seller. That happened here.

That's a bit over the top.  Then you have judges who think it's cool to insert pop cultural references in their opinion, like this opinion by the Texas Supreme Court, which quoted from Star Trek II:  The Wrath of Khan.  If it's the Beatles or Bob Dylan, that's one thing, but you have to wonder if a hundred years from now some law students are going to be poring over an opinion and wondering, "Who the hell was Garth Brooks?"

And there certainly are times when judges can successfully venture outside the normal boundaries of judicial writing, such as the opinion in a custody case described in this article, where a Canadian judge spent 31 pages ridiculing the parents for using their 13-year-old daughter as cannon fodder in their continuing war against each other.   Blasting both sides -- the father possessed "a near-empty parenting tool box," while the mother gave the child "advanced animosity-tutoring" -- the judge noted that he'd continued the trial for four months in the forlorn hope that the parties could resolve their problems through mediation, and concluded, "It is touching how a trial judge can retain his naivete even after 15 years on the bench." 

A mind is a terrible thing, wasted or not.  Here's how mine works.  I come across a story about a 6th Circuit decision which held that...  Well, the first paragraph of the opinion pretty much says it all:

The primary issue in this case is whether the appellee Premier Integrity Solutions Inc. (“Premier”) subjected the appellant Norman Norris to an unreasonable search in violation of the Fourth Amendment when it required him to provide a urine sample (for a drug testing) while directly facing a Premier employee. Premier used this “direct observation” method for monitoring the provision of the sample because of the ease with which persons giving a sample could otherwise evade the requirement of supplying a valid one. The district court held that Premier’s method of obtaining the urine sample did not constitute an unreasonable search in violation of the Fourth Amendment. We affirm.

Did I respond to this by engaging in the "individual interest in freedom/interests of society" analysis generally required for all rights?  Did I apply my own understanding of the 4th Amendment zone of privacy concepts?  No; my first thought was, "Gosh, what if you have trouble urinating when people are staring at you?"

There's a name for this.  Lots of them, actually, from "bashful bladder" to "pee fright."  It's classified as a social phobia in the Diagnostic and Statistical Manual of Mental Disorders used by psychologists, but then again, so is breathing.  The actual medical term for it is paruresis.  (Tidbit for today:  Howard Stern suffers from it, but my guess is that, on the list of things that are wrong with him, that's somewhere in the middle of page 2.)  So how does that fit in with drug testing?  Well, since 2005 Britain's rules relating to the testing of those on probation explicitly cite paruresis as a valid reason for inability to produce a sample which is not to be construed as a refusal.

And this is where he ties it all together.  I got a lot of the information about paruresis from Wikipedia.  But here's a brief-writing tip:  don't use that as a source, especially an unattributed one, in your briefs.  Courtesy of Legal Blogwatch, we're directed to the recent opinion in US v. Sypher, which contains the following footnote:

The court notes here that defense counsel appears to have cobbled much of his statement of the law governing ineffective assistance of counsel claims by cutting and pasting, without citation, from the Wikipedia web site. The court reminds counsel that such cutting and pasting, without attribution, is plagiarism. The court also brings to counsel’s attention Rule 8.4 of the Kentucky Rules of Professional Conduct, which states that it is professional misconduct for an attorney to “engage in conduct involving dishonesty, fraud, deceit or misrepresentation.” Finally, the court reminds counsel that Wikipedia is not an acceptable source of legal authority in the United States District Courts.

See you on Monday.

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Connick v. Thompson

It's fun to play the game, "What would I do with $14 million?"  Nice big house, nice new cars, vacations to exotic places, don't have to work any more...  You can also play the game, "What would I do for $14 million."  Lot of possible answers to that one, too, although I'm guessing that one of them isn't "spend fourteen years on death row and come within a couple of weeks of being executed for a crime I didn't commit, because prosecutors didn't turn over evidence to my attorneys."

That was John Thompson's answer to the latter question.  As a result of that, a Louisiana jury gave him $14 million.  And last week, in Connick v. Thompson, the Supreme Court took it away.

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Showdown averted

The law indulges in a great many fictions -- the existence of the "reasonable man," that criminal defendants are accorded a presumption of innocence, and that jurors who are instructed to disregard some piece of evidence will do so.  And then, of course, there's the fiction that sex offender registration and notification laws are remedial, not punitive.

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What's Up in the 8th

Two weeks since I've done this, so a lot to catch up on.  The court provides some (slim) hope for those seeking to vacate a plea, tosses yet another search, bollixes an evidentiary ruling, and provides some schadenfreude for Yankees haters.

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Case Update - Tanned, Rested & Ready Edition

Nothing like a week in the desert to rejuvenate one, especially one who usually gets less sunlight than the average vampire.  With batteries fully recharged, let's take a look at the cases that came down in my absence.

The biggest was the Ohio Supreme Court's decision in State v. Gingell, which involved the retroactivity of the Adam Walsh Act.  We'll talk about in more detail on Wednesday.  In Disciplinary Counsel v. Stafford (oral argument discussed here, last paragraph), the court smacked Vince Stafford, bête noire of the Cleveland domestic relations bar, with an 18-month suspension, in accordance with the board's recommendation, but modified that by suspending only six months, rather than twelve.   

Three opinions from down in DC.  The first, Cullen v. Pinholster, again addresses habeas corpus, the seventh decision this term to do so.  And, as in the previous six, the habeas applicant comes a cropper.  Pinholster had been sentenced to death, but argued in habeas that his attorney had been ineffective for not putting on evidence that Pinholster had suffered brain damage as a child.  The state courts had rejected the claim, but the Federal district court took additional evidence on the subject and came to a contrary conclusion, which was affirmed by the 9th Circuit.  In a 7-2 reversal, the Court held that the Federal courts were limited to the record provided to the state courts, and that record was sufficient to deny relief under the highly deferential standards for habeas.

The other notable case was Arizona Christian School v. Winn.  Over forty years ago, in Flast v. Cohen, the Court had held that taxpayers had standing to challenge a state expenditure on grounds that it violated the First Amendment's Establishment Clause.  At issue in Winn was an Arizona law that gave individuals a dollar-for-dollar state tax credit on contributions to private groups which provide scholarships to private school students; the "private groups," of course, are mostly giving out scholarships to parochial students.  The Court doesn't reach the merits of the matter, deciding that tax credits are different from tax expenditures, and taxpayers contesting the former lack standing to do so.  The 5-4 decision earned a spirited dissent from newly-minted Justice Kagan, discussed more fully in this Atlantic article, rightfully noting that the effect of Winn is to eliminate taxpayer suits regarding religious expenditures, as long as state legislatures are bright enough to disguise the expenditures as credits.

In the courts of appeals...

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War Stories V

I've commented before that much of the defense bar's protestation of the denial of their clients' right to speedy trial is so much bluster.  Unless the defendant is in jail, he almost invariably benefits from delay:  witnesses die, move, or forget, and that makes it harder to prove the case against him.  There's one problem with that analysis:  delay also gives him more time to screw up.

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War Stories IV

When the judge takes the time to inform your client of all his rights, just like he was making a plea, it's a pretty good hint that she thinks your client should make the plea.  While she was doing it, I couldn't help wondering if she was right.

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War Stories III

This really isn't a war story -- well, not mine, anyway -- but every now and then I go back and look at stuff that I've done here and think, "Yeah, I like the way I wrote that."  Not many, but some.  This is one of those I liked.

On June 11, 2002, Don Krieger, Clifton Oliver, and Andrew Mendez went to an Indians game in Cleveland.  The Tribe beat the Philadelphia Phillies handily 5-1, with Bartolo Colon pitching eight strong innings, and Milton Bradley providing the the big blow with a 3-run homer in the 3rd.

That's not why Krieger and Oliver will always remember that game, though.

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War Stories II

It's not a bad case, as domestic violence cases go.  My client Jorge discovered that his 17-year-old daughter had gone to the homecoming kids-spankingdance with someone he'd forbidden her to see, so he slapped her a few times.  He's got a couple priors, though, which makes this a 3rd degree felony. 

There are some facts which are not, shall we say, helpful.  Like that his daughter's about 4'9", and weighs maybe 90 pounds.  And she claims that the slaps caused her to bleed out of the corner of her eye.  Her glass eye.  Which replaced the one she lost to cancer when she was three.   No, I'm not making that up.

It's a defensible case, though.  I can hold my own as a trial lawyer, but I don't do it enough to be really good at it.  But if I can make a case about the law, I'm going to win most of the time, and I can make this one about the law.  Domestic violence normally requires only the infliction of "physical harm," which can be something as insubstantial as a shove.  Back in State v. Suchomski, though, the Ohio Supreme Court held that a parent couldn't be convicted for "proper and reasonable parental discipline."

So my BFF Lexis and I spend an afternoon together, and we come up with some good stuff.  There's State v. Hause, where the father punched his son in the face with his fist, leaving a "red mark."  In State v. Adaranijo, daddy punched his 13-year-old daughter in the leg and lovingly threatened to "beat the shit" out of her.  And there's State v. Wagster, where pops slapped his 12-year-old daughter with the back of his hand, causing her lip to blood, and turning it blue and swollen for several days.  In each case, the appellate court reversed a conviction for domestic violence, holding as a matter of law that this didn't constitute a sufficient injury for a conviction of domestic violence.

I put that all together in a trial brief, and throw in a couple of cases, for comparison purposes, where the evidence was deemed sufficient.  My favorite there was State v. Dickson, where papa drop-kicked his three-year-old daughter about five feet.  Runner-up was State v. McClure, where the defendant threw his step-daughter over a couch, kicked her as she was lying on the floor, and then, when she ran outside, chased and tackled her and "began pounding her head on the ground three or four times" before dragging her back into the house.

Kids.  What're you gonna do?

I've got some great law, and a good judge, but the problem is that Jorge wants a jury.  He wants to make this about whether he did the right thing.  I don't; I want to make it about whether he committed a crime, and I certainly don't want four or five people on a jury panel who think that even giving Little Susie a time-out pushes the parental-discipline envelope.

I finally convince Jorge to waive.  The girl testifies that he slapped her twice, then quickly elevates that to five or six times.  By the time I finish my cross, it's up to thirty.   The detective's next, and I know from previous pretrials that he's got a real hard-on for Jorge, so I stay away from his main line, which is that Jorge wouldn't let him meet with the daughter alone.  Instead, I focus on the fact that Cleveland cops were called out to the house the night of the incident, without anybody being arrested or taken away.  I take him through the training cops get in handling DV cases, through the injuries the girl claimed to have -- scratches, bruises, the bleeding eye -- then ask him whether it would've been proper procedure for a police officer who'd seen all that to leave the girl in the house, let alone not arrest the father.  What's he going to say? 

Jorge wants to take the stand to tell his life story, but I talk him out of that, too.  The judge acknowledges my trial brief, and pointedly asks the prosecutors if they've got any law to the contrary.   They don't. 

A week later, we're there for the verdict, and the judge acquits Jorge, then suggests, off the record, that maybe he should get some anger management counseling.  Jorge tells him that he didn't hear the whole story, but I assure the judge that he heard enough of it, and quickly hustle Jorge out of the courtroom.

Jorge still owes me a grand, which has been promised for about four months now.  He hands me a hundred and tells me I can trust him for the rest.  His trust is more limited; he wants a receipt.  He's still moaning as I write him one.  "I'm not saying you did a bad job trying the case," he tells me. 

I hand him the receipt, then walk out of the courthouse, warmed by the knowledge that Jorge doesn't think I did a bad job for him, getting him acquitted.

Clients.  What're you gonna do?

If you're wondering whether Jorge ever paid me the rest of the money he owed me, you really don't have a thorough understanding of criminal law.

Continue reading "War Stories II" »

War Stories I

I'm on vacation this week, so I'm recycling some of the war stories that have appeared here.  This is probably my favorite.

If you happen to need advice on how to prepare a jury in voir dire for the fact that your client's a transvestite, I'm the go-to guy there.

Continue reading "War Stories I" »

Friday Roundup

Siller Update.  When last we left Tom Siller, he'd just won a new trial from his aggravated murder conviction.  Long story short, (long story is here), Siller was one of three people who robbed an elderly woman's house; in the course of the robbery, she was beaten severely.  Siller was tried for attempted murder, with the State's key witness being one of his co-defendants, Jason Smith.  Smith's denial of his involvement in the beating was buttressed by police serologist Joseph Serowick, who testified that his examination of Smith's trousers showed no blood spots or splatters.

After Siller was convicted, the victim died, so he was tried for aggravated murder, with Smith making his star turn.  This time, though, Serowick admitted on cross that there was a spot of blood on the back of Smith's trousers; mid-trial testing showed it was the victim's.  The prosecution argued that it could've gotten there by Smith rubbing against Siller, and the jury bought it.

The case began to unravel when Serowick's testimony in an unrelated case was shown false, and a lab audit revealed problems with his testing in Siller's case.  The pants were retested, and instead of a single blood on the back, there were twenty splatters on the front, seven of the nine tested belonging to the victim.  Siller filed for a new trial, which was denied, but two years ago in a 2-1 decision, the 8th District reversed. 

And last week the State dismissed the charges against Siller when it received the results of other materials it had sent out for DNA testing:  the cloth strips used to bind the victim revealed that the only DNA found on them belonged to Smith.

Some kudos to the county prosecutor's office here:  the defense had never requested the bindings be tested; the State simply sent everything out on its own.

No doubt.  It's not possible to understate the significance burden of proof plays in a criminal trial.  I'd guess that in two-thirds of the acquittals I've had, the jury's told me that they thought my client did it, but weren't satisfied that the State proved it beyond a reasonable doubt. 

It's easy to define the burden of proof in civil cases, preponderance of the evidence, in statistical terms:  it's 51%.  But what about reasonable doubt?  Last year, I did a post (scroll down) mentioning that studies have shown jurors tend to use somewhere between 70% and 74% as a cutoff figure.  (How the studies came up with those figures I have no idea.) 

Of course, nobody tells jurors to use a number; definitions of reasonable doubt are much more ambiguous.  Back in 1990 in Cage v. Louisiana the Supreme Court held that an instruction defining reasonable doubt as "grave uncertainty" was unconstitutional because it suggested a higher standard than the "reasonable doubt" required by the Due Process Clause, but four years late in Victor v. Nebraska it upheld an instruction which allowed the jury to convict if they felt "an abiding conviction, to a moral certainty, of the truth of the charge."

Our stalwart legislature, seeking to remove any reasonable doubt as to the meaning of reasonable doubt, defined the term back in 1978 as being "proof of such character that an ordinary person would be willing to rely and act upon it in the most important of the person's own affairs."  I've found that handy, especially in defending assault cases arising out of bar fights, where virtually all of the witnesses spent the hours preceding the incident consuming alcohol, providing you with an effective argument in closing:  "Which of the most important of your affairs would you decide based upon what a bunch of drunks told you?"

Other legislatures and courts apparently prefer ambiguity, however.  Legal Blogwatch points us to California, where the courts have consistently held that the term "best defines itself," and that "every attempt to explain [the definition of reasonable doubt] renders an explanation of the explanation necessary."  One judge in a recent case, though, couldn't leave it alone, providing in the jury instructions "examples" of reasonable doubt such as "whether one cal tell what a jigsaw puzzle will show despite some missing pieces."  The defense attorney got into the act in his closing argument, providing three more examples:  his decision to marry, to become a parent, and a hypothetical about pulling the plug on a loved one who was in a persistent vegetative state.  After his conviction, the defendant appealed, claiming that the instructions on reasonable doubt were bollixed, but the appellate court affirmed, holding his lawyer primarily responsible,

although it would take more time and mental gymnastics than this jury possibly possessed to derive any inference relevant to reasonable doubt from what he said.  The only inference this court could derive from counsel's remarks is that counsel made two important decisions in his life, although he had reasonable doubts about their wisdom, and they happened to work out for him.  We have no idea what this means in terms of the burden of proof.  The implication, in terms of reasonable doubt, of his example of cutting off someone's life support also escapes us, despite many attempts to formulate one.  Again, we doubt that the jury put as much time and effort into it as we have.

Vacation time.  I'll be gone next week -- going to the Phoenix area, to hike through the mountains (yeah, surrrrre) -- but instead of closing the place down, I figured I'd something a little different.  In May, I'll have been doing this blog for five years.  As my legions of regular readers know, it's pretty heavy on the legal analysis, with only my snarky commentary keeping it from sliding into the territory commonly designated as BOOOO-RRRING.  But every now and then, I do a war story on a case I've had, and I usually get favorable feedback on those.  So I'm going to dig up some that I've done over the past five years, and post them next week so you won't have to go completely cold Turkey.

Enjoy, and I'll be back here live -- or as close to it as I get any more -- a week from Monday.

Continue reading "Friday Roundup" »

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