June 2011 Archives
Six weeks ago, I did a post on HB 86, the new Ohio sentencing reform statutes. The bill made its way through the Senate, and was passed by the General Assembly on Friday, and signed yesterday by Gov. Kasich. It takes effect in 90 days.
The purpose of the bill is to reduce the number of people in Ohio's prisons; currently, there are slightly more than 50,000 inmates residing in facilities designed to house 38,000. The bill does that in a number of ways: making some offenders less likely to go to prison in the first place, making it harder for judges to send people to prison for long periods of time, and making it easier for inmates to get out. For the most part, my earlier post contains the major changes the bill makes. One major change in that regard was that the House bill had lowered the punishment for a third degree felony from 1 to 5 years to either 9, 12, 18, 24, or 36 months. The Senate Bill kept those, but added 4 and 5 years as possible penalties as well. Another change was a provision that eliminates the ten-year cap for judicial release; now, an inmate can file for judicial release regardless of the length of his sentence, as long as he waits until half of the nonmandatory portion of it is served. And the presumptions in favor of prison in fourth degree felony drug cases were eliminated, and the mandatory requirements for most third degree felony drug offenses were reduced to mere presumptions.
I also did a post, though, on the changes the bill made in response to the Supreme Court's decision in State v. Foster. There, the Senate did make some significant changes.
Last Friday, I discussed the Supreme Court's recent decision in Bullcoming v. New Mexico, in which the Court held that the testimony of one lab analyst about the tests performed by a different one violated the defendant's right of confrontation, and I posed the following scenario:
Say, for example, a "cold case" of rape or homicide, a dormant prosecution triggered by a match of defendant's DNA through a database. Except that the person who took the defendant's DNA, or the coroner who performed the autopsy, is long gone, and the state can't produce them as witnesses.
And the day before, the 8th District came down with its decision in State v. Monroe, which featured this assignment of error:
Defendant was denied his constitutional right of confrontation when the court allowed a non-examining coroner to testify as [to] the cause of death.
The 8th decided there was no problem with that. Were they right?
Sometimes it's easy doing the weekly summary of the 8th District's cases: short opinions, each clearly enunciating some principle of law. Sometimes it's not so easy, as when I pull up an opinion and the page bar tells me this is page 1 of 20. Or 32. Or 45. There were one of each of those last week, the baker's dozen of criminal cases totaling 221 pages.
And it was all utterly fascinating. Really. No, really.
Bullcoming v. New Mexico, reviewed Friday, was the big decision out of SCOTUS last week, but not the only one. The case of Anna Nicole Smith, whose life was dedicated to proving the maxim that you can marry more in an afternoon than you can earn in a lifetime, was finally concluded. Thirteen months after her marriage to octagenarian oil magnate J. Howard Marshall in 1993, he died, and the battle over his $1.6 billion estate was joined, with Smith on the one side and Marshall's son Pierce on the other. The case continued after the death of each, Pierce's in 2006 from an "aggressive infection" and Smith's the next year from a drug overdose. A federal bankruptcy court had given Smith $89 million, but last week in Stern v. Marshall, the Court, in a rare affirmance of the 9th Circuit, held that although the bankruptcy court acted within the powers granted it by Congress,Congress had given the bankruptcy court more powers than it could under the Constitution. The opinion did not disclose how much of that $1.6 billion has been spent on lawyer fees over the better part of the last two decades, but I'm guessing the answer is "a lot."
Two more reminders that much of the Court's work deals not with constitutional law, but with questions of statutory interpretation. CSX Transportation v. McBride involved the Federal Employer's Liability Act, which protects railroad workers who are injured on the job. The Court holds that, unlike the situation in a regular personal injury case, McBride did not have to show that the railroad's negligence was the proximate cause of the injury; FELA only required him to show that the railroad's negligence "played a part -- no matter how small -- in bringing about the injury." Freeman v. US involves plea bargains under the Federal rules. Freeman, charged with distributing cocaine, had pled in return for an agreement that the prosecutor would recommend a 106-month prison sentence, a sentence squarely within the Sentencing Guidelines. Three years later, the Commission reduced the guidelines sentence for the crime, and Freeman sought to have his sentence lowered. Although four members of the Court agreed he could, Justice Sotomayor joined them only on the grounds that a defendant like Freeman would be entitled to a sentencing reduction only if the agreement specifically states that the sentence was based on the Sentencing Guidelines. Sotomayor's opinion is thus the controlling one.
The Supreme Court closes out its 2010 term today, with about the only big opinion left the one on California's law prohibiting sales of violent video games to minors. The smart money is 8-1 against the law, with Alito dissenting.
In Columbus, the only opinion of note was State v. Mbodji, where Mbodji appealed his misdemeanor domestic violence conviction, claiming that the complaint hadn't been reviewed by a judge, prosecutor, or magistrate, as required by RC 2935.09(D). The court held that the statute wasn't jurisdictional, and that Mbodji waived the defect by not filing a motion to dismiss under CrimR 12(C).
On to the courts of appeals...
The Chinese have the Year of the Dragon, Year of the Rat, Year of the Snake, and so forth. The US Supreme Court has the Year of the 4th Amendment, Year of the 5th Amendment, and so forth. The 2008 term featured the former, with big decisions like Herring v. US and Arizona v. Gant. The 5th Amendment was front in center in the 2009 term, with major decisions on the Miranda warnings like Berghuis v. Thompkins and Maryland v. Schatzer.
Well, this is the Year of the 6th Amendment, specifically, the right to confrontation. Earlier this year, in Michigan v. Bryant, the Supreme Court substantially limited Crawford v. Washington, the seminal 2004 decision holding that out-of-court statements were barred if they were "testimonial," even if they fell within a hearsay exception. Yesterday, in Bullcoming v. New Mexico, the Court narrowly repulsed an attack on Melendez-Diaz v. Massachusetts, and even on Crawford itself.
Surprisingly, the first substantive post I did on this blog, nearly five years ago now, was not on some aspect of criminal law, but on Olah v. Ganley, an 8th District decision about arbitrations -- provisions in consumer contracts (in that case a car purchase agreement) which required that any dispute be submitted to arbitration. In later posts, I noted that the 8th District was "one of the most arbitration-unfriendly districts in Ohio" and that "I have a real hard time trying to imagine a scenario in which an arbitration provision will be upheld in an ordinary consumer transaction." In fact, I did so many posts on the issue that Lexis came to the delusionary conclusion that people would be willing to pay $50 a pop to read my bloviations on the subject.
I haven't done a post on that in a while, because the legal landscape has changed substantially in the past five years. Back then, courts were sympathetic to the claim that large companies shouldn't be able to force consumers into giving up the rights they normally would under our legal system, like trial by jury and full discovery. One of those rights was also the right to come together to form a class action to seek redress; some Ohio courts invalidated arbitration provisions simply because they would have precluded the ability to file a class action suit.
After the 8th District's decision last week in Wallace v. Ganley Auto Group, you can stick a fork in that idea.
Apparently, the phrase "round up the usual suspects" has a different meaning for the Cleveland police department than it did for Captain Renault in Casablanca.
Some defendants are a bit too clever, as we learn in State v. Barnes and Figueroa v. Showtime Builders. Perhaps the Supreme Court should be a bit more clever, the court complains in one of three cases involving defendants named Jones, all of whom wind up on the losing side. But one defendant, despite spending the next three years in jail, is a winner.
One of the unlucky Jones was Melvin, who'd pled guilty to involuntary manslaughter back in 2000, only to have his sentence vacated in 2010 because of improper imposition of post-release controls. He appeals, claiming that he wasn't given a de novo sentencing hearing. He was entitled to one under State v. Singleton (discussed here), since his first sentence was prior to July 1, 2006, but that was before State v. Fischer decided that resentencings for PRC aren't de novo. Was Fischer retroactive? The panel points out that Fisher doesn't say, and that the high court's "holdings continue to leave gaps in the analysis that create uncertainty for the lower courts," but apply Fisher retroactively without actually saying so.
The court leaves no uncertainty in one area of the law. Last year, in State v. Bodyke, the Supreme Court held that the Adam Walsh Act's provision that the Attorney General was to reclassify sex offenders classified under previous SORN law violated the separation of powers doctrine, because it involved the executive changing an entry that had been made by a judge. As I'd mentioned in a post last year, one of the lingering questions was what happened if the previous classification did not result from a judicial order, but from operation of law. The 8th District has been probably the most AWA-hostile court in the state, and it burnishes that reputation in Hannah v. State and State v. Speight, unequivocally holding that any reclassification is impermissible, and the defendant's status reverts back to what it was before the AWA.
Nor is much uncertainty left in the area of joinder of offenses. In State v. Shabazz, the defendant had committed three armed robberies, two of stores and one of an individual, within a 30-day period. The court spends all of a paragraph rejecting his claim that they shouldn't have been joined for trial, and does it in a way that suggests that as long as the offenses are similar in type and proximate in time, a defendant is going to have to show some prejudice -- i.e., jury questions indicating confusion -- to warrant reversal for improper joinder. At any rate, we don't have to worry about Shabazz committing a 4th robbery; his 81-year prison sentence is also upheld.
In State v. Barnes, the defendant tries his best to avoid a domestic violence conviction, a hard sell given that the police, responding to the call of a disturbance, could hear the victim screaming "help me" and "get off me" from 150 feet away. When they broke down the door, they saw the victim lying on the floor covered with blood, and Barnes standing over with closed fists and blood on his shirt. The state's case was complicated by the victim's move to another state, obviously to avoid testifying. Many of her statements were admitted nonetheless, and it might have made for a good Crawford issue, but it isn't raised. Barnes did file a motion for new trial on the basis of newly discovered evidence -- an affidavit from the victim recanting her statements -- but that's a bit too clever, and the court brushes it off, noting that the defense attorney was informed of the recantation before trial, and thus it's not newly discovered.
The defendant in Figueroa v. Showtime Builders is also too clever by half. Locked in a dispute with a customer over a home remodeling contract, the pressed for arbitration, and the court dismissed the case without prejudice in August of 2008 because "the parties have indicated they have recently chosen an arbitrator and will proceed with binding arbitration." Apparently, an arbitrator hadn't been chosen, and over the next year Showtime ignored phone calls, emails, and letters from plaintiff's counsel attempting to select one. They finally did, but Showtime then fired its attorney and retained a new one, who dragged things out for another year and then informed the plaintiffs that Showtime was no longer interested in arbitration. And, oh, by the way, the statute of limitations had expired on the plaintiffs' claims.
The plaintiffs filed a motion to vacate the original entry, and the court granted it and ordered binding arbitration. Showtime appealed, arguing that you can't vacate a dismissal without prejudice, because it's not a decision on the merits. It's been my experience that when you engage in underhanded behavior, the courts are not going to bend over backwards to help you, and this is no exception. The trial court's dismissal was conditioned upon the agreement to proceed with arbitration, the panel decides, and analogizes this to a trial court retaining jurisdiction to enforce a settlement; thus, the "dismissal was conditional on an event that did not occur. The trial court could then grant appellees relief from that judgment in order to enforce the condition."
A bit more perplexing decision in Alexander v. Cleveland Clinic. Alexander was employed as a policeman by the Clinic, and while directing traffic gestured to a car to stop as it approached the intersection. It didn't, and Alexander yelled "Stop!" and hit her driver's side mirror, breaking it. While this would be routine -- indeed, somewhat docile -- behavior by a Cleveland police officer, it violated the Clinic's gentler, kinder view of how its officers should act, and so when Alexander refused to acknowledge the error of his ways, he was fired. Alexander sued, claiming that his firing violated public policy that police officers are to enforce the laws of Ohio, and that dismissing a police officer would jeopardize that public policy. The majority buys this, but the dissent makes a good case that Alexander was not fired for enforcing the law, but for violating the Clinic's policies with regard to how the law was to be enforced.
Finally, in the Cuyahoga County Prosecutor's Office, they keep track of the win-loss record of each of the assistant prosecutors. I'm not sure how they figured the result in State v. Calderwood. Calderwood, who'd been convicted of arson twice in Michigan, came to Cleveland and pilfered copper pipes and appliances from a house next door. The prosecution claimed he also turned on the gas, which resulted in an explosion which destroyed that house and damaged fifty-some others in the neighborhood. The State charged Calderwood with one count of burglary and 72 counts of arson, presenting 67 witnesses in a trial that lasted three weeks, and then the poor prosecutor had to sit there and listen while the judge, after announcing the conviction on the burglary count, tried to come up with different voice inflections for the 72 not-guilty verdicts on the arson counts.
I don't know how they do things in the Prosecutor's office, but if I'm the defense attorney, even though Calderwood got three years for the burglary, that one goes into the W column.
Five decisions from SCOTUS this week, four of them involving criminal law. (The fifth involved class actions, a subject so dear to my heart that I just can't bring myself to discuss it.) The most contentious was JDB v. North Carolina, a 5-4 decision holding that the age of a juvenile can be considered in determining whether he believes he's "in custody" for Miranda purposes. As I'd explained when I reviewed the oral argument in the case, the main concern centered on whether the decision would lead to the police having to guess the age of the suspect in order to gauge whether warnings were necessary. The majority hedged somewhat on this point, stating that a minor's age will not always be relevant, but will be when the suspect is obviously very young or when the police officers knows that he's a minor.
Davis v. United States found more agreement among the justices. Davis was a passenger in a car, and was arrested for giving the police a false name. After placing him in the cruiser, the cops searched his jacket, which was still in the car, and found a revolver. Davis' dismay at the 18-year prison sentence he received for being a felon in possession of a firearm dissolved a few months later, when the Supreme Court decided Arizona v. Gant and held that police couldn't search the vehicle incident to an arrest if the defendant didn't have access to the car or there was no probable cause to believe that evidence of the crime would be found in the vehicle. The 11th Circuit nonetheless affirmed Davis' conviction, and the Supreme Court affirms by a 7-2 vote. While normally a new decision will be applied to "pending" cases -- those presently awaiting trial or on direct appeal -- here it didn't: since the purpose of the rule is to deter illegal police conduct, no purpose would be served, says the Court, by applying it in a situation where the police conduct was not then illegal. Even Obama's two appointments, Sotomayor and Kagan, signed off on this extension of the "good faith" exception to the exclusionary rule, making me feel old; I can remember when there actually was such a thing as the "liberal" wing in the Supreme Court.
Nobody dissented in Bond v. United States. Bond, displeased that her husband had gotten her best friend pregnant, spread some chemicals on the latter's doorknob and car door, hoping to cause a rash. It instead resulted in Bond being charged, convicted, and sentenced to six years in prison for violating a statute Congress had passed implementing the United States' obligations under the 1993 Chemical Weapons Convention. She appealed, claiming that using the statute in this was an improper use of Federal power, in that it infringed upon the powers reserved to the states under the 10th Amendment. In one of the more bizarre decisions I've seen, the 3rd Circuit rejected her claim on the grounds that only a state official had standing to assert a 10th Amendment issue. The Court unanimously reverses (oral argument discussed here), spending 14 pages -- about 13½ more than necessary -- explaining why that was stupid.
The last decision, Tapia v. United States, involved the odd claim by a defendant that a prison sentence did not lead to rehabilitation. Tapia had been convicted of smuggling aliens, and the judge gave her 51 months instead of 36 because he believed that the longer sentence would allow her to qualify for the prison's drug rehabilitation program. Tapia pointed out that Federal sentencing laws specify 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. The Court agrees, again unanimously.
Down in Columbus, the Supreme Court resolved a question which has vexed practitioners lo these many years: in determining the 180-day time period for filing a petition for post-conviction relief, does the time run from when a videotape recording is filed with the appellate court, or will only a certified, written transcript suffice? In State v. Everette, the court decides the latter. The importance of this decision is only heightened by the fact that petitions for post-conviction relief are granted with the frequency of executive pardons for child molesters.
On to the courts of appeals...
One of the things I like about doing this blog is that I learn new things all the time. Yesterday I learned about the Mr. Potato Head cross-examination of a person giving eyewitness testimony at trial:
Q: You didn't describe his eyes?
Q: You didn't describe his ears?
Q: You didn't describe his nose?
Q: You didn't even describe his little mustache?
Q: Nothing further!
At this point you stalk back to the counsel table, drop your pad, and sit down. During closing argument, you produce a Mr. Potato Head and remove his features, one by one.
The only problem is, it rarely works.
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