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What's Up in the 8th

I've sometimes wondered if any of the judges on the 8th District read my blog.  That question was answered in oral argument this week.  I had  a case involving a Crawford issue, and my situation was greatly complicated by the fact that, six months earlier, the court had rejected the identical argument raised by a co-defendant in the same case.  Different panel, but they'd still be bound by the earlier case.   I figured I'd get around it by arguing that the prior panel hadn't had the benefit of Michigan v. Bryant, the Supreme Court case handed down earlier this year, which had clarified the definition of what constituted a testimonial statement (discussed here.)  Not two minutes into my argument, one of the judges brought up the co-defendant's decision and asked why they weren't bound by that.  "Well, as you know," I said, "I don't like to criticize this court's decisions --" which was immediately met by gales of laughter from the panel, one judge ascerbically noting, "At least not in oral argument."

So it's nothing but love this week, guys.  Really.  No, really.

Isn't technology wonderful?  Five years ago, when someone would realize that post-release controls hadn't been properly imposed on some defendant, they'd transport the poor guy from prison so he could stand sullenly before the judge as he was told that he had  a mandatory, not discretionary, three years of PRC.  Now, through the miracle of science, when I handle one of those cases, I trudge over to the twelfth floor of the Justice Center, where the court and I get to videoconference with the defendant.  Of course, the quality of the picture and sound makes it look as though the poor rummy is circling Earth in the space station, as opposed to merely being ensconced in Mansfield Correctional.

The tricky thing here is that CrimR 43(A)(2)(d) requires the trial judge, in a video conference, to advise a defendant, on the record, that he has the right to communicate privately with counsel.  What if the judge doesn't?  That question was raised in two cases over the past two weeks, State v. Sherels and State v. Edwards. In both cases, neither the defendant nor attorney had objected, so the court reviews it for plain error and finds none.

I'm not sure about this.  For example, a court is required by statute to ask a defendant if he's a citizen, and if he's not, to give him the warnings about about the possible effects on his resident status contained in RC 2943.031(D).  The court has reversed numerous cases for failure of a judge to give the required warnings, and not once has it applied a plain error standard.  For good reason:  waiver might apply where the judge does something and you don't object to it, but it's hard to see why you have to object because the judge was required to tell you something and didn't.  Better reasoning would have been the court's second choice, which is that it is harmless error:  given that the only purpose of the hearing was to properly impose PRC, it's impossible to see how there would've been a different outcome if the defendant had communicated privately with counsel.

The Valentine issue is raised in another pair of decisions.  Valentine, of course, deals with "cookie-cutter" indictments, common in child molestation cases, where the indictment contains numerous counts alleging the same date and facts; e.g., twenty counts of rape, all alleged to have occurred between October 1, 2007, and January 31, 2009.  In State v. Hlavsa, the court deals with the "double jeopardy" aspect of Valentine, which holds that the indictment or the evidence must be sufficiently specific to allow a court to decide what the defendant was actually convicted of.  (For an example of what can happen if it isn't, read State v. Ogle, discussed here.)  The court does an excellent job of closely examining the facts, affirms 15 convictions of rape on the counts where there was specific evidence, and vacates the 2 counts where the testimony was that "this happened about 30 times.  Not that it matters much to Hlavsa, who got 10 years to life on each of the counts that did make the cut.

While the vast majority of Valentine cases have dealt with the double jeopardy aspect of "cookie-cutter" indictments, State v. Ferren deals with the notice aspect:  the indictment must be sufficiently specific to allow the defendant to prepare a defense.  Ferren, a music teacher, was charged with 50 some counts of sexual battery for a dalliance with one of his students, and 7 counts of unlawful sexual conduct with a minor for a dalliance with another.  While the sexual battery counts each contained a separate one-month time period, the sexual conduct counts specified the same seven-month period.  The Valentine court had rejected the notice argument, holding that a problem with specificity was common in child sex cases, and there was no indication the prosecution had any more specific information than it gave.  The court in Ferren follows this reasoning, but in such a way as to imply that it is the defendant's burden to prove that the state did have more specific information.  At any rate, an attack on the notice aspect is probably doomed to failure, as long as the state makes some effort to supplement information in a bill of particulars.

I've had a number of clients who were convinced that the police were specifically targeting them, although they were usually at a loss to explain why the police would bother.  There may be times, though, that you think perhaps The Man is indeed singling out your client and prosecuting him for what others commonly do.  Should the thought occur to you to pursue a selective prosecution case, check out Lakewood v. Calani, where Calani raises the "but everybody else does it" in defense of a prosecution for violating some sundry city ordinance requiring auto body shops to do their work indoors.  Here's what you need to know:  The defense of selective prosecution must be raised in a pretrial motion, and the defendant bears a "heavy burden" of making a prima facie showing that (1) others similarly situated have not been prosecuted, while defendant has, and (2) selection of defendant for prosecution was based on impermissible considerations such as race, religion, or desire to prevent him from exercise of his contitutional rights.

Here's one other thing you need to know, if you practice civil law.  It's not unusual for personal injury lawyers to take advantage of the voluntary dismissal provision under CivR 41(A)(1)(a):  you can dismiss the case up to the day of trial simply by filing a notice of dismissal. The rule says you can only do that once, but the courts have held that this only applies to the notice dismissal; if the case is dismissed for another reason -- a stipulation of dismissal by the parties, for example -- that doesn't count.   You can then refile within a year under RC 2305.19, the savings statute, which gives you a year to refile a claim that's been dismissed "otherwise than upon the merits."

So let's say you have a medical malpractice case which arose in June of 2004.  You file suit in May of 2005, and voluntarily dismiss the case in May of 2006.  You refile it in March of 2007, but the court kicks it out because you didn't include the affidavit of merit from another doctor saying you had a valid claim.  That's a dismissal without prejudice, so within a year, you take advantage of the savings statute again, and refile.

No, you don't, says the court in Graf v. Cirino:  the courts have consistently said that the savings statute can only be used once, althought no language to that effect appears in the statute, because otherwise "a plaintiff could infinitely refile his action, and effectively eliminate statutes of limitations."  It's hard to see how, given the limitation on voluntary dismissal.  Good thing to keep in mind, though; you've got only one mulligan.  If you use it and you subsequently get tossed for missing a pretrial or something like that, you're out of luck.

Like the sergeant said on Hill Street Blues, "be careful out there."

And finally, a life lesson from State v. Gunter:  When the BCI analyst testifies that the chances the DNA found on your 11-year-old cousin's genital swabs isn't yours is 1 in 42 quintillion 140 quadrillion, you'd better have a pretty good explanation of how it got there. A story that your cousin Bernard kidnapped you, forced you to masturbate into a tissue, then made you give it to the cousin so she'd smear it on her vagina, isn't it.


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