Story Number One is about Hattie Carroll and William Zantzinger.  If you recognize those names, you’re probably as old as I am; the incident, which occurred in 1963, was immortalized a year later in Bob Dylan’s song, “The Lonesome Death of Hattie Carroll.”  The short version is that Carroll was a black waitress at a prestigious Baltimore restaurant, and Zantzinger, a wealthy local tobacco farmer,  was a customer.  He ordered a bourbon from Carroll, and when Carroll was slow to bring it, Zantzinger called her a “nigger” and a “black son of a bitch,” and hit her on the shoulder and across the head with his cane.  She started to pour the drink, but Zantzinger still was displeased with her promptness in serving him, so he hit her again.   Carroll collapsed about ten minutes after that, and died eight hours later.

Zantzinger was initially charged with murder, but the charges were reduced to manslaughter.  A three judge panel found him guilty, and imposed a sentence of six months and a fine of $500.  The judges deferred the sentence for a couple of weeks to allow Zantzinger to harvest his tobacco crop.

Story Number Two is about Tyell Morton.  He’s 18 years old, and he did a dumb thing.  As a joke, the 18-year-old Indiana high school senior put a blow-up doll in the girl’s bathroom.  Did I say dumb thing?  Oh yeah; he didn’t just stop by on the way to his next class and slip it inside the door, he entered the school wearing a hooded top and latex gloves.  Well, when security saw somebody on the surveillance cameras  in that getup sneaking into the school and slipping a box into a restroom, they got pretty excited.  The school was evacuated, and the bomb squad was called.

The school didn’t take it well.  Sure, putting a blow-up doll in the girl’s bathroom is the kind of prank that high school kids have been doing for years, but this is the post-Columbine world, so Morton was suspended for the rest of the school year, and won’t be allowed to graduate with his class.  He’d never been in any trouble before, but rules are rules, and so you can expect that the school would come down hard on him.

So did the authorities.  Morton’s also in jail, awaiting trial on charges of felony criminal mischief, which carries a maximum sentence of eight years in prison.  If Morton had brought a gun to school, he’d be looking at three years max.

Story Number Three is about Ryan LeVin.  Back in the early morning hours of February 13, 2009, he was driving his $120,000 Porsche 911 Turbo in Fort Lauderdale, drag racing with a friend in a BMW.  LeVin lost control, and the car jumped the sidewalk and killed two British tourists who were walking back to their hotel.  The good thing was that the victims didn’t suffer; LeVin hit them going about 70 mph.  The impact threw them over 100 feet.

LeVin didn’t stop to see what had happened.  He later switched cars with the friend in an effort to escape detection.  He was arrested last year after a lengthy investigation.

LeVin’s had prior problems with cars.  In 2006, he ran over a Chicago police officer and led a high speed chase on the Kennedy Expressway.  He got probation for that, but when he violated it by failing to attend drug counseling, the judge revoked it and sentenced him to two years in prison.  He did a whole six months.  But that was then, this is now:  killing people is taken fairly seriously in this country.  He pled guilty to hit and run and two counts of vehicular homicide, and was looking at 20 to 45 years in prison.  Last week at his sentencing, the prosecutor asked for ten years.

As you might guess about somebody who’s driving a $120,000 car, Levin’s loaded.  Rather, his family is; he’s the son of Arthur and Shirley LeVin, founders of a direct sales jewelry empire.  So his attorneys worked out a deal:  he paid off an undisclosed sum for a settlement of the civil suit brought by the families of the two tourists, and last week the judge gave him two years of house arrest.  The Broward County Public Defender expressed outrage over the sentence, noting that “our clients in similar situations, in every case, go to prison for substantial periods of time.”  In fact, the same day LeVin walked free, a 56-year-old Fort Lauderdale man who pleaded guilty to killing another man in a street race was sent to prison for nine years.

But LeVin’s not out of trouble.  He’s being returned to Illinois to face a parole violation hearing for the 2006 offense; he wasn’t supposed to be in Florida.  It’s expected that he’ll do six months for that, including the time in jail awaiting the violation hearing.  After that, he’ll do his house arrest at one of his parents’ two condos at the Point of Americas on Fort Lauderdale Beach.  Like some other prisoners, he should be able to buff up; the condo center has three fitness rooms.

Here’s the last verse of Dylan’s song:

In the courtroom of honor, the judge pounded his gavel
To show that all’s equal and that the courts are on the level
And that the strings in the books ain’t pulled and persuaded
And that even the nobles get properly handled
Once that the cops have chased after and caught ‘em
And that ladder of law has no top and no bottom
Stared at the person who killed for no reason
Who just happened to be feelin’ that way without warnin’
And he spoke through his cloak, most deep and distinguished
And handed out strongly, for penalty and repentance
William Zantzinger with a six-month sentence

Some things don’t change.

This week, we find out how easy it is to commit the crime of kidnapping.  (Domestic violence isn’t hard, either.)  We learn when to raise an argument, and when not to.  We come across a case where the 8th absolutely nails a Crawford issue.  And, not for the first time, a defendant tests our credulity. (keep reading…)

We covered Supreme Court decisions yesterday, so today we’ll take a look at the decisions from the Ohio courts of appeals… (keep reading…)

After complaining for weeks about the paucity of cases coming from Columbus, my cup runneth over:  four major decisions.  We’ll discuss them in a minute, but there was a bevy of decisions from SCOTUS, too.  We’ll push the Ohio appellate decisions off until tomorrow, and do the 8th District summaries on Wednesday.  Thursday, we’ll look at allied offenses in the post-Johnson world, and on Friday we’ll sing Bob Dylan songs. (keep reading…)

Criminal defendants batted 1.000 in three decisions from the Ohio Supreme Court this week — more on that on Monday.  They took it on the chin in in the oral argument on State v. Barker, which I discussed yesterday, but they rebounded strongly the next day in State v. Davis. 

Hell, maybe I oughta write a sports column. (keep reading…)

Christopher Barker pled out to three counts of unlawful sexual conduct with a minor back in 2009.  During his plea, the court advised him of his constitutional rights, partly in this fashion:

I do have to ask you, do you understand when you’re entering a plea you’re giving up your right to a jury trial or bench trial, also giving up your right to call witnesses to speak on your behalf or question witnesses that are speaking against you? Do you understand that?

Barker was sentenced to 12 years in prison, but last year, the 6th District reversed, holding that the plea was invalid because the trial judge failed to advise Barker that not only did he have the right to call witnesses, but that the court could force them to show up.

After yesterday’s argument in the Supreme Court on the case, bet the ranch that Barker’s going to do the 12 years. (keep reading…)

So I’m sitting at the prosecutor’s table over at the Justice Center, waiting for the judge to show up.  I’d trudged over to the jail first to see the client I’d just been appointed to represent.  A mental health docket case, and he’d called me the day before asking for a visit.  “I’ve heard good things about you,” he said.  Probably heard it from the voices inside his head, but at least they weren’t telling him, “Kill Bensing, kill Bensing.”  Yet.  He did impart one gem of wisdom.  He was charged with failure to comply — the old fleeing and eluding — and told me that he’d checked the statute, and it says that for a defendant to be convicted, the  police chase has to be at least four miles long.  “I think they’ve amended the law since you looked it up,” I said gently.

I’m a half hour into my wait for the robed one when another lawyer sits down next to me and says, “Can I run something past you?”  Since I had my netbook open to the  stock page, watching the market start off on its way to its fifth straight day of losses, further imperiling my retirement plans — which at this point consist of repeating the phrase, “Welcome to Wal-Mart!” into my mid-70′s — I figured I could tear myself away.  “Sure, what’s up?”

“You know anything about the castle doctrine?”

“Does the Pope wear funny hats?” I replied.  “Which castle doctrine are we talking about?” (keep reading…)

The 8th District hands down about a thousand decisions a year.  Most of them are of little consequence.  That’s not to fault the court; that’s true of most intermediate appellate decisions.   They usually apply well-established legal principles, or they’re so fact-specific that they have no real precedential value, or they deal with some niggling aspect of the law.  But every now and then, an opinion not only addresses an important area of law, but gives a fresh perspective on it.  The 8th handed down only six decisions in felony cases last week, but three of them fall into that category. (keep reading…)

Two decisions from SCOTUS this week involve the question of qualified immunity, the doctrine that an official can’t be held liable under a 1983 action if he did not violate clearly established law.  At issue in Ashcroft v. al-Kidd was the Justice Department’s use of the Federal “material witness” statute in the wake of 9/11 to take individuals suspected of terrorism ties into custody, then hold them without any intent to later call them as a witness.  The Court unanimously agreed that courts hadn’t previously inquired into an official’s subjective purpose of an arrest warrant under the statute, so Ashcroft was entitled to immunity.  Oddly, al-Kidd did not argue that use of the statute for detention was itself unconstitutional, but three justices joined in Kennedy’s concurring opinion strongly suggesting that such use was improper; Kagan recused herself, so future use of the statute in that fashion may run into problems. 

In Camreta v. Greene, the petitioner won’t take yes for an answer.  Camreta was an Oregon child protective services caseworker who interviewed a 9-year-old girl at school regarding sexual abuse allegations about her father.  The girl’s mother sued, and the 9th Circuit agreed that the interview, which was done without a warrant or consent, violated the child’s 4th Amendment rights, but found Camreta was entitled to qualified immunity because there was no clear decision prohibiting his conduct.  Camreta nonetheless appealed, and the Court agreed that he had standing, because the 9th’s ruling could subject him to future liability, since there now is a clear decision prohibiting his conduct.  But the Court decides that the case is moot because the girl is now 18 and no longer has a stake in the issue, so it vacates the 9th’s decision, and we all get to pretend the case never happened.

Global Tech Apps. v. SEB is a patent decision, but has implications for scienter requirements in criminal cases.  Without going into the details of the decision, which would succeed in boring us both, the Court holds that when a criminal statute requires knowing or willful conduct, that’s satisfied by proof of willful blindness on the part of the defendant.  Most courts have held this way — I discussed the 8th’s decision in State v. Blackshear on that issue a few weeks ago – but the Supreme Court had never ruled on that issue, and here it did in a civil patent case without any briefs or arguments on the question. 

Nothing from Columbus, so let’s head over to the courts of appeals, where not much going on with the holidays and all… (keep reading…)

There’s a perception among a sizable portion of the public that prisoners are “coddled”:  that a prison sentence guarantees you not only three hots and a cot, but color TV, computers, conjugal visits, and all the amenities of home, except that somebody tells you when you have to eat, but hell, your wife does that anyway, right?

Reading the Supreme Court’s decision last week in Brown v. Plata might disabuse people of that notion. (keep reading…)