May 2011 Archives
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. Whiting. The 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...
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.
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.
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.
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.
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.
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...
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.
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.
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.
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.
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