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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.

Schadenfreude is a German word meaning "delighting in the misfortune of others."  (And if anyone was going to have a word for that, you'd figure it would be the Germans.)  Seven years ago, Leslie Derison came from New Jersey to watch her beloved Yankees battle the Indians.  She acted with the obnoxiousness typical of Yankee fans, banging on a cowbell, yelling obscenities, refusing to quiet down, and then getting into a fight with the police when they tried to escort her out.  In State v. Derison, she appeals the denial of her motion for expungement, claiming that the trial judge failed to consider the appropriate factors, but, to the delight of long-suffering Tribe fans, the court says it didn't matter, since you can't get a felony assault conviction expunged.

One of the questions which frequently arise during trial is whether a prior statement can be introduced as substantive evidence.  The court tackles that question in State v. ClementClement was on trial for aggravated murder, and the State called Alfred Rodgers as a witness.  Rodgers had testified at the trial of Clement's co-defendant six weeks earlier, but had since apparently experienced a bout of amnesia, so the State used his prior testimony to question him, and then introduced it in evidence.  No problem, said the court, relying on EvidR 801(D)(1)(a), which provides that a prior inconsistent statement is admissible as substantive evidence if the declarant is subject to cross-examination on the statement, and the statement was "given under oath subject to cross-examination by the party against whom the statement is offered."  The statement was inconsistent with Rodgers' testimony at Clement's trial, it was given under oath, and it was subject to cross-examination, so it comes in, says the court.

A problem.  While the statement was subject to cross-examination by the co-defendant, it wasn't subject to cross-examination by Clement, and the rule (the party against whom the statement is offered) and the Staff Notes make clear that cross-examination by Clement was required.  It could still be used to impeach Rodgers, under EvidR 613, but it doesn't come in as substantive evidence.  That's nit-picking to a large degree; the court got all the other assignments of error right, and the evidence was fairly overwhelming.  Still, as noted, a lot of trial judges experience problems with this issue -- in a trial I recently had, the judge believed that the police report, because it had been used in the cross-examination of a police officer, albeit only to refresh his recollection , could be introduced into evidence by the State -- so a little more clarity on this is desirable.

State v. Taylor can be introduced in evidence as Exhibit 135 in my case that the 8th District is the most 4th-Amendment friendly court in the state, if not the country.  The cops stop a car in which is a passenger, and have her get out -- oops, sorry, "exit the vehicle," in police parlance.  A sharp-eyed officer notices that Taylor has a bulge in the back of her shirt.  He finds her cooperative and non-threatening, however, and decides not to pat her down.  Still, he'd smelled fresh marijuana in the vehicle, so he calls for a female officer to come to the scene and search Taylor.  He puts Taylor in the police cruiser, and when the female officer arrives a half hour later and Taylor gets out of the cruiser, the bulge is gone.  That doesn't mean Taylor should head to Vegas to do magic shows; the cops find a bag of cocaine in the cruiser.

The court reverses the denial of the motion to suppress, making two points.  First, the smell of marijuana in the vehicle (no marijuana was subsequently found) provides probable cause to search the vehicle, but it doesn't provide probable cause to search the passengers.  Second, given the detective's concession that Taylor had done nothing wrong and didn't appear to be armed or dangerous, there was no justification for the 30-minute detention until a female officer could arrive on the scene.  Critical here was the detective's inability to articulate a reason for a patdown:  he persistently claimed that he suspected drugs, but just as persistently denied he had any reason to believe that Taylor was armed.  And you have the right to patdown people for weapons, not for drugs.

Pizza Pan v. CWC Sports Group provides an important lesson for trial and appellate attorneys.  Everybody knows that building the appropriate record in the trial court is essential to a successful appeal, but sometimes building that record can mean nothing more than making the right arguments.  CWC signed a deal giving Pizza Pan the exclusive right to use the name and likeness of Brian Robiskie, a Cleveland Browns receiver, on their product.  A few months later, Pizza Pan was non-plussed to find that Donato's Pizza was offering a collector's cup with Robiskie's picture on it.  Pizza Pan sued, only to be confronted with the contract's forum selection clause, which required any litigation to be brought in California.

At one time, such clauses were against public policy, but they aren't any more.  There are ways to get around them, though -- considerations like where the contract is to be executed, and whether the forum's designated location is inconvenient to the parties.  Unfortunately, in its 21-page brief to the trial court Pizza Pan spent no time discussing any of those factors; the only reference to the forum clause was a solitary paragraph stating that the clause "wasn't relevant."  Thus, the arguments on the clause in the appellate court were for naught; as the court concludes, "Pizza Pan will still have its day in court; it will just have to be in California."

The opinion, sadly, leaves unanswered the bigger question:  why would anyone pay money to obtain exclusive rights to the image of Brian Robiskie -- whose 29 receptions last year ranked 145th among NFL receivers -- let alone litigate the issue?  It's sort of like the Trojan War being fought over Roseanne Barr.

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