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May 2011 Archives

Case Update

The opinions start to spill out of Washington, with most being exercises in statutory construction.  Fowler v. US involves the state of mind required for conviction of the Federal witness tampering statute, which makes it a crime to "to kill another person, with intent to. . . prevent the communication by any person to a [Federal] law enforcement officer" of "information relating to the . . . possible commission of a Federal offense."  Fowler killed a local police officer who discovered him preparing to rob a bank, and the 11th Circuit upheld his conviction, holding that the government needed only to show that it was "possible" that the police officer would have tipped off Federal authorities.  Not so, says the Court in a 7-2 decision; the statute requires that there be a "reasonable likelihood" that a Federal official would have received the information.

In US v. Tinklenberg, the subject was a provision of the Speedy Trial statute which excludes "delay resulting from any pretrial motion."  Ohio has a similar provision, and our court has interpreted that to mean that any motion filed by the defendant tolls the time.  I've argued that's wrong, because it reads the "delay resulting" part out of the statute, but SCOTUS doesn't think any more of that argument than the Columbus Gang have, rejecting that interpretation in an 8-0 decision.

The two big decisions, though, were Brown v. Plata, which we'll talk about on Friday, and Chamber of Commerce v. WhitingThe latter involved an Arizona ordinance which suspended or revoked the business licenses of Arizona employers who knowingly hired illegal aliens.  The statute, like the more recent Arizona law allowing police officers to question people they stop about their immigration status, involves the issue of to what extent state laws are pre-empted by Federal laws on immigration, a matter traditionally reserved for the Federal government.  Whiting holds that the state law does not conflict with Federal law, and is thus not pre-empted.  The decision is of limited utility in gauging whether the Court will uphold the recent law, because that involves issues of discrimination as well.

Nothing happening in Columbus, so let's head over the courts of appeals...

Continue reading "Case Update" »

Friday Roundup

Better Space Invaders than home invaders.  Although the recession that supposedly started in December of 2007 supposedly ended sometime in 2009, that's a hard sell to anybody here in Cleveland, or just anyplace else for that matter:  millions of people are still desperately seeking jobs, housing is still in the toilet, and every day of good economic news seems to be followed by a day of bad.

But while the unemployment rate isn't going down, the crime rate certainly is:  to the bafflement of experts who'd figured that tough economic times would result in higher crime rates, as has happened in the past, violent crime continues to decline, hitting the lowest rate in nearly 40 years

Theories abound for why this is true, but, with a hat-tip to Sentencing Law & Policy, comes another possibility:

the Internet also reduces crime in a very unique way. Most of street crimes - personal or property - are committed by juveniles and young people. Since juveniles and young people are spending more and more time on the Internet, gaming, surfing and networking, they have little time to commit crime.

So if your surly teenager -- but I repeat myself -- disdains any contact with you or other humans in preference to sitting in his room playing computer games by the hours, despair not.  Sure, his job prospects might be limited -- after all, not many companies place a premium on an employee's ability to get beyond the 7th level in Dragon Age: Origins -- but at least he's not out selling crack or mugging somebody.

Employee of the Month.  Speaking of employees -- and notice the smooth transition there -- former Cleveland State University cashier Gayle Schmitz lucked out earlier this month:  after she pled guilty to embezzling $173,000 from the school, the judge changed his mind and gave her five years probation instead of a prison sentence.  That's better than Colleen Kempf or Juanita Myrick did; Kempf wound up doing four years for stealing $500,000 from a local Catholic girls school here, and Myrick got hit with a whopping two decades for ripping off the Cuyahoga County Department of Employment and Family Services of three quarter of a mill. 

But when it comes to low-down, scummy employees, you'd have a hard time topping Scott Wellington of New Hampshire.  He told his employers a couple years back that his wife had found a lump in her breast.  Soon, that escalated to breast cancer, which required a double mastectomy.  He got about $7,000 in donations from other employees to help him deal with his wife's illness -- and to help their four children, all under the age of 10 -- and last Christmas the company gave him four weeks off, paid, to attend various medical procedures with his wife.  All in a lost cause; she died earlier this spring.

Well, not really.  Wellington made the whole thing up.  His wife found out about it when she opened a sympathy card from the employer commiserating with Wellington on his loss.  She called the company, they tipped off the cops, and Wellington was arrested.

Well, that's what happens when you use Hooters as a recruiting ground for paralegals.  A long time ago, I tried the first case involving a Cleveland ordinance making it a crime to leave a gun laying around so that a minor could get ahold of it.  The victim was a three-year-old boy, who'd killed himself with the gun.  The rules allow the prosecutor to have someone sitting at the trial table with him, which is usually the investigating detective or some other police officer.  In this case, the prosecutor wanted to have the mother sitting with him.  I wasn't too keen on the jury having that reminder throughout the trial, and the prosecutor eventually relented.

Thomas Gooch had a different problem of that sort.  In a recent motion in a civil case, Gooch filed a "Motion in Limine" re the "Presence of Plaintiff's Counsel's Companion at Counsel's Table at Trial," asserting that

Defendant's counsel is anecdotally familiar with the tactics and theatrics of Plaintiff's counsel, [redacted].  Such behavior includes having a large breasted woman sit next to him at counsel's table during the course of the trial.  There is no evidence whatsoever that this woman has any legal training whatsoever, and the sole purpose of her presence at Plaintiff's Counsel's table is to draw the attention of the jury away from the relevant proceedings before this court, obviously prejudicing the Defendant's in this or any other cause.  Until it is shown that this woman has any sort of legal background, she should be required to sit in the gallery with the rest of the spectators and be barred from sitting at counsel's table during the course of this trial.

The plaintiff's lawyer quickly fired back his own broadside; the "companion" in question was his paralegal:

a) Plantiffs' paralegal is clearly qualified for the work she performs before and during trials, and there is no reason to believe that her appearance at Plaintiffs' table will have any detrimental effect on Defendants' presentation of its case to a jury; and b) Defendant's motion does not cite any existing law or make any good-faith legal argument for the proposition that a woman may be barred from a counsel's table at a jury trial because she is "large breasted."

And let's hope that precedent is never established.

Continue reading "Friday Roundup" »


I filed an appeal brief last week assigning as the only of error ineffective assistance of counsel.  There were fairly significant lapses.  The defense counsel, for reasons which I found unfathomable, had brought out the fact that his client was in jail pending trial, and that his client was a drug addict and alcoholic.  He failed to object to critical pieces of evidence and arguments.  Most damaging, on cross-examination one of the defense witnesses, a six-year old girl, told the prosecutor that the defense attorney had told her if she said the right things, her step-father could come home.  I talked to the prosecutor, the court reporter, and an attorney who'd sat in for most of the trial, and they all told me the actual trial was ten times worse than what the transcript showed. 

And I still felt kind of bad about making the claim.

Continue reading "IAC" »

The dog ate my post

Actually, the computer did.  Friend called up and said that my post today ended rather abruptly.  To say the least -- midsentence, inf act.

I'll have it up tomorrow.

Continue reading "The dog ate my post" »

What's up in the 8th

The State takes it on the chin in a search case -- so what's new? -- but there's a three-way split on another one, more plea and sentencing problems  arise, the court decides to clarify some law just so I'll shut the hell up about it, and still finds the time to address the tort reform statute.  All that and more from the Court by the Lake's body of work last week.

Continue reading "What's up in the 8th" »

Case Update

In addition to the King decision, which I discussed last Thursday, SCOTUS handed down a couple of other decisions, one on the intersection between the False Claims Act and the Freedom of Information Act, and other on ERISA.  If you came here to find out more about either, you are so in the wrong place.  One decision I didn't cover was AT&T v. Concepcion, which dealt with consumer arbitration provisions and class actions.  I'll make up for that sometime in the next few weeks.

Several decisions of note from Columbus, for a change.  Wilhelm-Kissinger v. Kissinger provides Chapter 413 in the continuing sage, "Hell Hath No Fury"; embroiled in a divorce, the wife finds emails between the husband and his lawyer on the former's computer, and promptly sends them to her own attorney.  Husband moves to disqualify wife's attorney, the trial court denies it, husband appeals, and the 9th District holds it's not a final appealable order.  The Supreme Court agrees, given that a judge can review that order and change it if he finds doing so appropriate.  Keep in mind that an order disqualifying counsel is final and appealable.

State v. Damron could have been a lot more than it turned out to be.  Damron had pled to felonious assault and domestic violence, and, in keeping with the state of the law at the time, the prosecutor argued that since the elements were different, the two crimes were not allied.  The trial court found that the two offenses should merge under State v. Harris (discussed here), but instead gave concurrent sentences.  On appeal, the 10th District affirmed, holding that although the judge may have been wrong about the merger issue, the concurrent sentences were "authorized by law" and thus valid.  The Supreme Court finds this incorrect, for the obvious reason that giving concurrent sentences is not the same as merging offenses, and remands it for consideration under State v. Johnson.  The state had asked that the court also consider whether felonious assault and domestic violence are indeed allied offenses, but the court had declined that proposition of law.  Since the plurality decision in Johnson, the court hasn't issued any rulings in allied offense cases, and one or two explaining that decision further might be welcome.

On to the courts of appeals...

Continue reading "Case Update" »

Friday Roundup

Challenged by technology.  If you checked in here before 4:00 yesterday afternoon and wondered why there wasn't a post, it's because it took me that long to realize that I hadn't clicked on the little "publish" button after finishing up the post yesterday morning.  Understandable mistake; I mean, it's not like I've been doing this for years.  Anyway, if you want to read my thoughts on the Supreme Court's decision earlier this week in Kentucky v. King -- and let's face it, who doesn't? -- that post is right below this one.

Continue reading "Friday Roundup" »

Bad boys, whatcha gonna do?

Decisions, decisions.  Police officer Steven Cobb had one to make.  He was part of a team which had set up a controlled buy of crack outside an apartment building in Lexington, Kentucky.  After making the buy, the suspect ran into the building, and Cobb got the call to intercept him before he entered an apartment.

Too late; as Cobb and other officers got to the hallway, they heard a door slam.  At the end of the hall, there were two apartments; the cops didn't know which one the suspect had entered.  They smelled marijuana smoke emanating from the one on the left, though, so they pounded on the door and yelled "Police!"  They heard noises inside, and believing that the people inside were destroying evidence, they broke down the door.  Inside, they found cocaine and marijuana.

Wrong apartment, it turned out; the suspect was later found in the apartment on the right.

And on Monday, in Kentucky v. King, the Supreme Court held that it didn't matter.

Continue reading "Bad boys, whatcha gonna do?" »

Anatomy of a search

Here's the bar exam question:   An apartment building has a water leakage problem, so the owner provides everybody with notice that the apartments will be inspected on a certain date.  On that date, the owner, the property manager, and a plumber go to Jeremy's apartment.  He isn't in, so the three enter the apartment, and find a bag of marijuana and a pipe on the table.  The owner contacts his attorney and tells them of the discovery.  The attorney calls the police and tells them that his client found suspected marijuana and a pipe in an apartment.

Somehow, this gets conveyed by police dispatch to Officer Rebraca that "an exorbitant amount of marijuana with plants" was found in an apartment.  Rebraca goes there, and the owner leads him to the apartment, where he points to the bag of suspected marijuana.  Rebraca doesn't see any marijuana plants.  Meanwhile, back at the ranch, Detective Kappa also received the call about the "large number" of marijuana plants.  He contacts Rebraca and asks if the plants are visible, and Rebraca tells him they aren't.

Nonetheless, Kappa prepares an affidavit for a warrant, stating that that the landlord had "observed a purported large amount of marijuana plants in plain view," but noting that Officer Rebraca, who was on the scene, had seen only a baggie of marijuana and a pipe, and "was not aware than any marijuana plants had been located."  A search warrant is issued, a search is done, and a small amount of cocaine, five Percocet pills, and a revolver are found.

Good or bad search?  The 8th District provides the answer last week in State v. Callan.

Continue reading "Anatomy of a search" »

What's up in the 8th

The devil is in the details, the saying goes, and the details of verdict forms and plea hearings are highlighted in a couple of decisions this week.  And attention to detail also applies to defendants, as the defendant in State v. Grant learns.  He argued that his appeal should be reopened because his appellate counsel was ineffective for not raising issues like insufficiency and manifest weight of the evidence, but the court gently reminds him that it would have been hard to raise those issues, what with him having pled guilty and there not even being a trial.

Continue reading "What's up in the 8th" »

Case Update

The only news out of Columbus is Daniel Bedford's inexorable journey to his date with a needle.  Twenty-seven years ago, Bedford went to the house of his ex-girlfriend and killed her and her new boyfriend.  He quickly confessed, and was easily found guilty.  Sentencing was another matter, however; when his conviction and sentence were affirmed four years later by the Supreme Court, three justices dissented, arguing that the prosecutor had repeatedly committed misconduct in the sentencing phase.  Bedford had an IQ somewhere between 70 and 76 at the time of the crime; his lawyers now claim that he's suffering from dementia, and has no recollection of anything pertaining to the offense.  No matter; the court denied one motion for stay last Tuesday -- again by a 4-3 vote.  Bedford filed another motion for stay, and the court has ordered that the State had until Saturday at 4:00 PM to file a response.  Sometime later today the court will deny that, and tomorrow morning, Bedford will be executed.

One inmate who may escape execution is Shawn Hawkins, convicted of killing two people in a drug deal back in 1989; last week, the Parole Board unanimously recommended that Hawkins' sentence be commuted to life without parole. 

Down in DC, nothing of note; the Court resumes session next week, with the announcement of several decisions anticipated.  In fact, the more momentous event occurred several miles south of the capital, where the Fourth Circuit held arguments on the Patient Protection and Affordable Care Act, the new health reform law passed by Congress last year.  SCOTUSBlog has links to numerous articles covering the argument, in a case which is probably destined to hit the Court next year, and which could be one of the most momentous decisions on Congressional powers in history. 

On to the courts of appeals...

Continue reading "Case Update" »


Tomorrow, it will be exactly five years since I did my first post on this blog.  By the way, the rainbow decoration on the cake isn't some subliminal message that I'm really gay.  Not that there's anything wrong with that

The stats say this is my 1,224th post.  I really wasn't too sure what I wanted to do when I started, other than take care of my writing jones and maybe provide a resource for sole and small firm practitioners.  I'd originally planned on doing more civil stuff; in fact, my very first post was on contractual arbitration provisions.  But I enjoy criminal law more, and my focus has shifted to that.

Sometimes, this is a pain to do.  It takes me about twelve hours a week.  I do "day in the life" stuff every now and then, and although my views should be apparent to those who read this regularly -- and in answer to your questions, yes, I do carry a bucket around for my bleeding heart -- I don't really use this blog as a pulpit for my opinions.  Mostly, it's legal stuff; I probably read more cases than any lawyer in Ohio who isn't paid to read cases.  I try to make it interesting, and if I could change the subtitle of the blog, it'd be "case analysis with attitude." 

Anyway, I've had a good time here.  I doubt there'll be a 10th birthday, and, who knows, there may not even be a 6th.  We'll take it a year at a time.  I've enjoyed this, and thanks for being around to help me do that.

Continue reading "Blogiversary" »

Farewell to Foster?

As every schoolboy knows, the sentencing reforms contained in the 1996 revisions to the criminal code were pretty much trashed in State v. Foster.  The reforms had created presumptions in favor of minimum sentences for first offenders, in favor of concurrent sentences, and against maximum sentences; Foster declared all that a violation of the Supreme Court's decisions in Apprendi and Blakely, which had essentially prohibited judicial factfinding in sentence determination.  Three years later, in Oregon v. Ice, the Supreme Court gave the go-ahead to a legislature's requiring judicial factfinding before imposition of consecutive sentences, but last December, in State v. Hodge, the Ohio Supreme Court rejected the argument that Ice had automatically revived Ohio's statutes on that subject.  It was up to the legislature to do that, said the court.

And that's apparently just what the legislature intends to do.

Continue reading "Farewell to Foster?" »

Prison reform is here

Well, maybe...  Last Thursday, the Ohio General Assembly passed HB 86, which provides some substantial changes in Ohio law.  Basically, it makes it less likely that someone's going to go to prison, and more likely that they're going to get out sooner.  Here's a quick and dirty look at what it does:

Continue reading "Prison reform is here" »

What's up in the 8th

I needed new gutters on my house, so a couple weeks back I had a guy come over, he takes measurements, draws up a contract, and I signed it.  Thought about it, did some checking, and decided I didn't want to spend that much, so the next day I sent a letter canceling the contract, because Ohio law allows me to change my mind and back out of a home solicitation contract within three days.

Good thing I hadn't pled guilty to a crime, because the current state of the law on withdrawing a plea doesn't allow me to change my mind about that.

That's how I started out an oral argument in an appeal a couple weeks ago in a case where the defendant had pled guilty to aggravated murder, then two hours changed his mind and tried to withdraw it.  I'm not too optimistic I'm going to be successful, and cases like the 8th District's decision last week in State v. Taylor are the reason why.

Continue reading "What's up in the 8th" »

Case Update

I got an email from a young lady last week, who told me she was preparing a paper for a law class and wanted permission to cite a post from my blog.  She added that the paper was due in a few days, so a quick response would be appreciated.  She'll make a good lawyer; I often feel that if it weren't for the last minute, I wouldn't get anything done.

Apparently, the justices of the US Supreme Court share a similar proclivity for procrastination; they don't resume the bench until next week, and with five weeks left in the term at that point, it has yet to issue opinions in over half the term's merit cases.  Last week's solitary opinion came in Montana v. Wyoming and North Dakota, in which the Court rejected Montana's claim that Wyoming had breached the Yellowstone River Compact.  Even more fascinating than the subject matter (he said, tongue planted firmly in cheek) is that this was a rare exercise of the Court's original jurisdiction.  Back when the Arizona immigration law was thrown out by a Federal district court, a Canadian website created a lot of hubbub in the right-wing blogosphere by contending that since Article V says that the Supreme Court "shall have original jurisdiction... in all cases in which a state is a party," only the Supremes could hear the Arizona case.  The answer to this is the difference between exclusive and concurrent jurisdiction.  In fact, the rules of the Supreme Court do allow them to exercise original jurisdiction in such cases, but they never do, leaving them for the district courts; they limit their grants of original jurisdiction to disputes between two states. 

Down in Columbus, the Gang of Seven resolved a water dispute between Cleveland and various suburbs, deciding whose responsibility it will be to put out blaze the next time the Cuyahoga River catches fire.  No, I'm making that up; the court couldn't even rouse itself to slap down some miscreant attorney for his errant ways.  Daniel Lee Bedford probably doesn't share my opinion about the court's lack of output; they did find time to order the State to file a memorandum in response to Bedford's request for discretionary appeal by today, given that Bedford's execution is scheduled for next Tuesday.  On April 29, the 1st District rejected Bedford's claim that his mental retardation precluded his execution; the cutoff for that is 70, and Bedford had racked up an impressive 76.

On to the courts of appeals...

Continue reading "Case Update" »

Friday Roundup

Hmmm, where'd I put that motion to determine competency...  No real post today.  I've got a brief due on Monday, and despite my best exhortations, it has refused to write itself.  In the meantime, I have a pretrial for a new client on Tuesday, and to give you a preview of what that might be like, check out the video.  There's a ten-second advertisement for a couple of chiropractors, which reminds me of the joke

Q.  How many chiropractors does it take to change a light bulb?

A.  One, but he has to come twenty-five times.

But then you get to the good stuff.  Pay special attention to the name of the lawyer appointed to represent the defendant.

The full story's here.  I'll have to go over to court this morning and find out what I did to piss off Judge Friedland. 

See you on Monday.

Continue reading "Friday Roundup" »

Sentencing packages

Yesterday I discussed State v. Parker, the 2nd District's recent decision modifying the sentence of schoolteacher convicted of having sex with one of his students from fifteen years in prison to five.  There was another angle to the case, and I wanted to follow up on that, because it involves something many lawyers aren't familiar with:  the sentencing package doctrine.

Continue reading "Sentencing packages" »

Young love

Yesterday, I gave my by-now tedious lament on the state of Ohio's sentencing law, posing a challenge to the numberless legions of my readers to "come up with a scenario in which an appellate panel would reverse a sentence."

Well, lo and behold, one of them took me up on it, sending me the a copy of the 2nd District's decision in State v. Parker, which featured just that result.

Continue reading "Young love" »

What's Up in the 8th

I once had a client named Bobby, who pled to a low-level drug offense.  This was back in the days before SB2 and post-release control, so the judge offered him an choice at sentencing.  "Bobby," the judge said, "I'll give you six months in prison, and when you get out, you're done.  Or, I'll give you a year's probation, but if you screw up and test dirty, you'll go away for a year."

Bobby didn't even have to think about it.  "I'll take some of that probation."

Two months later, he tested positive.

There's an old saying that good judgment comes from experience, and experience comes from bad judgment, but that's not always true;  some people consistently exercise bad judgment.  Those people are called "defendants":  they hang around with the wrong crowd, say and do the wrong things at the wrong time.  They make the wrong decisions, like Bobby did, and like the defendant in State v. Smith did.  After pleading guilty to third degree felony robbery, she was offered a choice by the judge:  one year of prison, or two years of community control sanctions, with a 5-year prison sentence if she violates. 

Sure enough, she took what was behind Door No. 2, and sure enough, six months later she hit the probationee's trifecta:  she tested positive, failed to report, and then picked up another felonious assault case for stabbing her stepfather.  She appeals the sentence, and the appellate panel, instead of simply chuckling and affirming, launches into a four-page exegesis of the wasteland that is Ohio's sentencing law.  (Although Smith was given concurrent sentences, the opinion even includes a discussion of State v. Hodge and Oregon v. Ice.)

The court feels similarly constrained to expound upon sentencing law in State v. Heard, despite the fact that the defendant isn't appealing the sentence iteself; the appeal centers around claims that the judge had ex parte communication with social worker and improperly took into consideration allegations that defendant had previously abused the victim, his 5-year-old son.  The panel rejects them, but also sees fit to discuss Kalish and Foster and RC 2929.11 and RC 2929.12 and all that other good stuff.

If you are familiar with Ohio sentencing law, there's little suspense in the outcomes of Smith and Heard.   In fact, a fun game for those of you playing at home is to come up with a scenario in which an appellate panel would reverse a sentence.  Other than the trial judge saying something like, "It's my policy to send colored people to prison," I'm drawing a blank.

The defendant in State v. Littlejohn also finds himself victimized by his own bad decisions, such as deciding to smoke marijuana in a car in the parking lot of an apartment building (as opposed to doing so in the privacy of his own dwelling), and then duking it out with the cops instead of just submitting to arrest.  The central issue is the sufficiency of the state's evidence of serious physical harm to the police officers, which appeared ample:  one officer missed a month's work, another two weeks, and both testified to lingering effects of the injuries, all of which was sufficient to demonstrate the "temporary, substantial incapacity" which satisfies the serious physical harm element.  Not content with this, though, the opinion reiterates prior case law from the district that evidence the victim sought -- not required, mind you, just sought -- medical treatment is sufficient.  The problem with this approach should be obvious:  a precautionary emergency room visit for the purpose of ruling out serious injury would have the legal effect of establishing the existence of one.

Sometimes it's the victims, not the defendants, who make poor decisions.  Among that subset is the people who sought the services of Bella Derm Medi Spa, whose slogan was "the feel of a spa, the care of a physician."  Alas, the defendant, who ran the place, was a mere cosmetologist.  The featured treatment was something called mesotherapy, which probably is mentioned prominently in North Korean torture manuals; according to the opinion's description of the procedure,

Annable would numb the clients' skin with ice packs, and while [an employee] held the clients' skin "tight," Annable would apply a roller with needles to the area.  The employee testified that the clients would usually bleed from the rollers, and that she saw the same roller being used on more than one patient.  According to the employee, "these people were in a lot of pain."

Hell, I was in pain just reading about it. 

The central aspect of the appeal in State v. Annable is the trial court's determination that the charge of practicing medicine without a license is strict liability.  The court sifts the tea leaves to determine whether the General Assembly intended it to be strict liability, and concludes that it did not, and so the required mens rea defaults to recklessness.  The result makes little sense.  You can certainly be reckless with regard to whether you have a valid driver's license; you may not have gotten notice of a suspension.  But how can you be reckless about whether you have a medical license?  "Gee, I thought I went to med school and spent three years in a residency, but I guess I didn't."  Still, this isn't the fault of the court:  it's not like the panel got to decide whether the crime should be strict liability or recklessness.  As I said, recklessness is the default. 

Nonetheless, the court rejects the claimed error in the trial judge's failure to instruct on recklessness or any other mens rea, primarily because the defense failed to object to it, and because the evidence showed that Annable at least acted recklessly.  At least.

Two other conclusions in the opinion are a bit more troubling.  During Annable's cross-examination, he was confronted with a tape of a radio advertisement in which he was referred to as "Dr. Annable."  The evidence showed that the ad was created by Clear Channel, on its own, with the intent of inducing Annable to purchase air time for it.  He didn't, and the ad was never aired.  The court nonetheless holds that this introduction of the tape was proper:

Annable's position at trial was that he never held himself out to his clients or the public as a doctor.  The tape was admitted into evidence to attack Annable's credibility by showing that he was believed to be a doctor.

There's a step missing here.  Whether Clear Channel believed Annable to be a doctor is not dispositive of the question of whether Annable held himself out to be one.  Cross-examination of Annable as to what he might have done to lead Clear Channel to believe that he was a doctor, or testimony by Clear Channel on the same subject, would certainly have been proper.  And cross-examination of Annable on the ad would clearly be permissible if he'd authorized its use.  But there is nothing in the opinion to indicate any of the above, and absent that, it shouldn't have been admitted.

The other troubling part is highlighted by the partial dissent of Judge Stewart.  Annable was also convicted of a count of theft, apparently on the premise that his customers were promised treatment by a doctor, and weren't given it.  As Stewart points out, this is a civil matter; "the victims may not have received entirely what they bargained for, but any shortcomings in what was agreed to versus what was delivered is purely a matter of contract."   It's a small point in Annable's case -- it's hard to argue that he didn't deserve his 4 years in prison -- but it's a good point to keep in mind; I've seen too many occasions when the prosecutor's office allowed itself to serve as a collection agency.

Continue reading "What's Up in the 8th" »

Case Update

The US Supreme Court's work last week was notable for what it did do and what it didn't.  In AT&T v. Concepcion, which I'll discuss in more detail later on this week, the Court held that the provision in AT&T's cell phone contracts requiring consumers to submit all disputes to arbitration, and to waive their right to form a class action in the proceeding, was enforceable, pre-empting California law which allows such actions.  The Court also denied cert in Virginia v. Sebelius, which challenges the new Federal health care law.  There have been five District court decisions on the law -- three upholding it and two striking it down, either partially or totally -- and Virginia had asked the Court to bypass the normal appellate process and take the case directly.  The Court refused, but oral argument in the appeals courts on two of the cases is scheduled for this summer, so it's quite likely that the Court will take up the case next Term, and possibly render a decision just before the 2012 presidential campaign.

The outcome of that is difficult to gauge at this point.  There had been claims that new Justice Elena Kagan would have to recuse herself because of her service as solicitor general in the Obama administration, but she testified at her nomination hearings that she was only tangentially involved with any discussions concerning the issue while she was solicitor general.  Notably, she did not recuse herself from consideration of the cert petition.  Given the ideological split on the constitutionality of the measure -- the two decisions striking it down came from Republican judges, and the three upholding it from Democrats -- Kagan's participation is a key factor.

Down in Columbus, only one decision, that involving suits for negligence in performing a mortgage appraisal.  To the surprise of everyone who reads this blog, and everyone who knows me, and myself, for that matter, I'll be discussing that one in more detail later this week, too.

On to the courts of appeals...

Continue reading "Case Update" »

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Recent Entries

  • February 14, 2018
    Two more to death row
    A couple of death penalty decisions from the Ohio Supreme Court
  • February 12, 2018
    En banc on sentencing
    The 8th looks at the appellate court's role in reviewing sentences
  • February 8, 2018
    SCOTUS and the Fourth
    A couple of upcoming Supreme Court decisions on search and seizure
  • February 5, 2018
    What's Up in the 8th
    The benefits of appealing muni court cases, lecture time, and when you absolutely, positively, cannot raise arguments about manifest weight and sufficiency
  • February 2, 2018
    Friday Roundup
    School specs and sovereign citizens
  • January 31, 2018
    A tale of three cases
    The Ohio Supreme Court decides one case, and decides not to decide two others
  • January 29, 2018
    What's Up in the 8th
    Getting rid of an attorney, no contest pleas, and probation conditions
  • January 26, 2018
    Friday Roundup
    Information society. Last week I did a post about Aaron Judge and the lack of hard data in the field of criminal law. We have mainly anecdotal information on what kinds of sentences judges hand down, we have no idea...
  • January 24, 2018
    A win in a search case
    Analysis of the Supreme Court's decision in State v. Banks-Harvey
  • January 22, 2018
    What's Up in the 8th
    The rape shield statute, some creative work on ILC, and skunks.