August 2011 Archives
A long time ago, in a galaxy far away, I had a client named Larry Kaiser. He and his brother decided to rob a steakhouse one night. There was an off-duty cop who sought to intervene; he was killed, but managed to shoot Larry's brother. Larry, ever the solicitous sort, took his brother to the emergency room, opened the door and pushed him out onto the sidewalk, then sped off. The story of his capture a few days later coincided with the story of the officer's burial, and the front page of the newspaper was adorned with a large picture of the funeral procession, and a smaller mug shot of Larry. That day, the police got a call from a bar owner identifying the newspaper picture of Larry as the same guy who'd robbed his tavern a month earlier and killed a patron. Larry subsequently gained the distinction of being the only non-serial killer in Ohio to get consecutive death penalties for two wholly unrelated killings.
A year later, the US Supreme Court struck down Ohio's death penalty, and Larry's sentence was commuted to life imprisonment. I didn't have anything to do with the case after that, but I always thought that the identification in the bar shooting was bogus. If the police had shown the bar owner Larry's picture and told him, "We arrested this guy for killing a cop. Is this the same guy that shot up your place?" any court in the country would've suppressed any subsequent in-court identification as being the product of a blatantly suggestive procedure. That was in fact the information communicated to the owner by the newspaper article, but that doesn't mean anything if there's no police involvement.
Or does it?
Like virtually all rust-belt cities, Cleveland has been losing population for decades. It has apparently reached the point where we're having trouble finding enough people to serve on juries, because of the six criminal opinions handed down by the 8th last week, four were after trials, and three of those were trials to the bench. The people that are left here, though, are certainly possessed of colorful names: among the defendants we find Kimmy Knuckles, Fidel Kemp, and Romeo Fulton. That does them little good. In fact, in the only "win" for defendants, the defendant would have been better off not appealing at all.
Three decisions out of Columbus, two in criminal cases, neither result a surprise. The issue in State v. Dunlap was the mens rea requirement for gross sexual imposition involving a victim under 13. As I explained when I wrote about the oral argument, the case law held that the statute was strict liability, but those decisions concerned the age of the child; here, the defense argued that the act of touching itself required proof of recklessness, while the State responded that another section, which defined the sexual contact as touching "for the purpose of sexual gratification," supplied a purposeful intent. Why, might you ask, is the State arguing for a heightened level of intent? Because the case was tried back in the glory days of State v. Colon, and while the trial judge had included the "purpose" definition in the jury instructions, it hadn't included a definition of recklessness; had the Supreme Court bought into the defense theory, Dunlap would have earned a new trial. At least, back in those days he would have; Colon, of course, was overruled a year ago.
Dunlap's conviction is thus unaffected by the decision, but it does impact him in another way. He committed the crime in 2007, but wasn't convicted until March of 2008. The reason for the delay in the court's decision -- oral argument was back in January of 2010 -- was that it held the case, first for the decision in State v. Bodyke, and then again for the decision in State v. Williams. The latter, discussed here, held that the Adam Walsh Act classifications couldn't be applied retroactively to people who committed their crimes before its effective date of January 1, 2008. So the court reversed Dunlap's Tier III classification and sends the case back so that he can be reclassified under Megan's Law.
The second criminal decision last week was State v. Barker, and I'd also discussed the oral argument on that in June. I'd told you to bet the ranch on a State victory, and if you didn't, you have only yourself to blame, or the fact that no one reading this blog is likely to own a ranch. The case involved the question of whether a plea was invalid because the trial judge had informed Barker only that he had a right to "call" witnesses, rather than that he had a right to compulsory process, as is stated in the rule. The 6th had vacated the plea, finding the admonition insufficient, but there were a number of problems with that opinion, chiefly that there was a written plea agreement which contained the full statement from the rule. The court's ruling is a bit broader than I would've liked: the first half of the opinion is spent discussing why "call" is sufficient to imply a power to coerce appearance, although the latter half does make it clear that the "totality of the circumstances" surrounding the plea -- especially when there's a plea agreement -- can be considered. The opinion does suggest that "strict" compliance with the rule won't be all that strict, especially since it relies on State v. Ballard, a 1981 decision in which it held that a trial judge's telling a defendant that "neither a judge nor jury" could make any inference from his refusal to testify adequately apprised the defendant of his right to jury trial. In any event, future decisions like the one two years ago in State v. Smith are unlikely; there, the 8th District vacated a plea because the trial court hadn't told the defendant he had the right to subpoena witnesses, even though he had used the exact words of the rule: "you have the right to compulsory process."
The civil case, Dominish v. Nationwide, simply holds that if an insurance policy says you have a certain time to file suit, and you don't file suit, you're out of luck, at least as long as the insurance company has clearly denied liability for your loss and has done nothing to induce you to forego filing suit earlier.
On to the courts of appeals...
Eyewitness ID. As this article notes (h/t to Crime & Consequences),
New Jersey's highest court ordered changes Wednesday to the way eyewitness identifications are used, saying the current system is not reliable enough, fails to deter police misconduct and overstates jurors' ability to evaluate the evidence.
New Jersey police had already been employing pretrial identification procedures designed to minimize error, such as the use of double-blind photo arrays and lineups. (Ohio passed legislation mandating similar procedures, which I discussed here.) The New Jersey Supreme Court decision, which you can read here, deals more with trial procedures, especially the use of jury instructions to make jurors aware of the problems with such evidence. As the court notes, since the US Supreme Court last addressed the issue in Manson v. Brathwaite 34 years ago, a wealth of sociogical and psychological research has highlighted those difficulties, especially in regard to stranger and cross-racial identifications.
In that light, it's interesting to note that there's a case on that issue on the Supreme Court's docket for next term. I'll discuss that next week.
We have a winner. Okay, I know sometimes the legislature will give funky names to crimes. "Having weapons while under disability" makes it sound like you got out of your car packing an Uzi after pulling into a handicapped spot. But then I stumble across this story, which relates the all-too-common experience of some adult taking youth sports -- in this case, a football league for six- and seven-year olds -- a bit too seriously. Apparently concerned that the referees' rulings might impair his ability, a decade or so hence, to try to peddle his offspring's talents to the highest bidder, a la Cam Newton's father, Dejuan Wells ran onto the field and began cursing the zebras. The affair escalated, with the result that Wells bit two of the off-duty police officers attempting to restrain him. The story concludes by noting that "Wells has been charged with battery, battery by body waste, resisting law enforcement, criminal trespassing, and disorderly conduct."
Who says working at Westlaw and spending your days coming up with headnotes isn't fun? Especially when you can come up with one like this for the case of Washington v. Alaimo:
 Federal Civil Procedure 2820
170Ak2820 Most Cited Cases
Inmate plaintiff's complete disregard of and noncompliancewith explicit court order to show cause why Rule 11 sanctions should not be imposed upon him for filing motion for improper purposes warranted dismissal with prejudice; motion which plaintiff filed was entitled "Motion to Kiss My Ass" in which he moved "all Americans at large and one corrupt Judge Smith [to] kiss my got [sic] damn ass sorry mother fucker you." Fed.Rules Civ.Proc.Rule 41(b), 28 U.S.C.A.; U.S.Dist.Ct.Rules S.D.Ga., Rule 41.1(b).
Let's go to the video. As I've mentioned before, my technological savvy is deep, but not wide. I'm pretty good with computers, but everything else... I just figured out how to use my copier's zoom feature a couple years ago. Last year, I bought a smart phone, then took it back a week later because I was too dumb to figure out how to use it. I've never sent a text message, nor taken a picture, with my cell phone. I like to take photographs, but I've never used a camcorder.
Fortunately, somebody knew how to use one at a Critical Mass bike ride in New York City a few years back. The rides are dedicated to the proposition that bicyclists have road rights, too, and sometimes people don't take too kindly to the idea of masses of bike riders clogging up city streets. One of those people, apparently, was Patrick Pogan, the police officer in the video you can check out here.
Pogan filed a report alleging that the bicyclist, Christopher Long, had purposely steered his bike into Pogan, and Long was charged with attempted assault, resisting arrest, and disorderly conduct. Then somebody anonymously posted the video on the Internet, and things pretty quickly went to shit for Pogan, who'd been on the force all of 11 days before the incident. He was convicted last year of filing a false police report.
One might think that police would welcome the assistance of citizen cameramen to help in weeding out the bad apples on the force. One would be, by and large, wrong. As this article notes, someone wielding a camera in the vicinity of police can often find themselves the target of prosecution, either for "obstructing justice" or, under the laws of at least twelve states, violating statutes which require all parties to a recording to consent to it. Despite exceptions in those statutes for recording in public places where "no expectation of privacy exists," bad things continue to happen to people like Christopher Drew,
who recorded his own arrest for selling one-dollar artwork on the streets of Chicago. Although the misdemeanor charges of not having a peddler's license and peddling in a prohibited area were dropped, Drew is being prosecuted for illegal recording, a Class I felony punishable by 4 to 15 years in prison.
If found one of the more interesting things about all this was a comment on the YouTube site:
First thing that shocks me is: why? What's the point of it?
The second thing is how the rest of the people are completely unresponsive. If this happened here in Portugal, people would flock to defend the citizen. My guess is people in the US fear the police, which is not good at all...but apparently with good reason.
Another "good reason" was provided at Pogan's sentencing. He was facing up to four years in prison, and his lawyer argued for probation. The judge went him one better: "The defendant doesn't need any further supervision by the court and the verdict is conditional discharge, period."
Your client's sitting in his yard, minding his own business, when the next-door neighbor, with whom he's been feuding for years, comes over and starts arguing with him. The argument escalates, the other guy has some pruning shears which he starts waving around, but your client has a gun, and in any papers-rock-scissors contest, a gun trumps everything, with the result that your client now has a dead neighbor, and is facing a murder charge.
It's an iffy case; after all, the other guy did have the shears. Still, he was standing ten feet away when your client shot him, and you're going to have a tough time proving self-defense by a preponderance of the evidence in those circumstances. The State offers to let your guy plead to one count of voluntary manslaughter with the agreed minimum sentence of three years.
Your client's willing to take the deal, but you tell him not to. You've read something on some blog by a Cleveland attorney about the Castle Doctrine, and that it shifts the burden of proof on self-defense to the prosecution, so you convince your client that he has a good chance to get acquitted, and off you go to trial. Where you find out that in addition to reading that blog, you should have checked out the law, because if you had, you would've learned that the Castle Doctrine requires you to be in your house, or at worst an attached porch; it doesn't apply if you're just in your yard. Your client is convicted of murder, and probably will wind up spending about seven or eight times as long in prison as he would've if he'd accepted the deal.
Can he use the fact that you screwed up and gave him bad advice to get out from under that?
I had a seminar last Friday, which included an hour of ethics. It was one of those "interactive" seminars, where instead of droning on, the lecturer posed hypotheticals for the audience to respond to. That can prove disastrous in certain situations, but this wasn't one of them. The audience was engaged, the speaker was very good, and the hypotheticals were quite interesting. One involved doing post-conviction relief on a death penalty case, digging into whether the trial lawyers competently examined and presented mitigating evidence, and your client tells you under no circumstances do you talk to his mother. That's a no-brainer; death penalty work is a whole 'nuther animal, and you leave no stone unturned, regardless of what your client wants. (It might have been more interesting if the hypothetical had been that you're the trial lawyer, you think the mother might have evidence relating to an alibi, and your client forbids you to talk to her.)
The last hypothetical, though, was what you do if you think you can get an instruction on a lesser-included offense, and your client doesn't want you to pursue that. The answer to that, it became clear, depends on what you envision is your role as a defense attorney.
After spending the last few weeks listening to my whining about how they're rendering so few decisions, the 8th decides to shut me up by issuing a bakers dozen of criminal cases. As if. This week, we learn that clothes make the man, at least as far as the 4th Amendment is concerned, and that new technologies carry new perils. We are also left to wonder what a prosecutor might have to say in order to validate a Batson challenge, short of, "I want to get the coloreds off the jury."
It's still two months before the Supreme Court opens its 2011 term, but speculation is already building. Not so much about the 42 cases already on the Court's docket, but some big political cases that could wind up there, and be decided just before the presidential election: health care, affirmative action, and gay marriage (actually, the constitutionality of the Defense of Marriage Act). There are some other ones, too, including whether FCC regulations of broadcast TV violate the First Amendment, another Crawford case on expert testimony, how use of a GPS device by the police implicates the Fourth Amendment, and whether an attorney renders ineffective assistance by failing to communicate a plea offer to a client. In the next few weeks, I'll start doing previews of some of the upcoming cases.
The Ohio Supreme Court on Tuesday "announced three merit decisions with opinions," but, like the knob on the toaster which assures us that it will produce nicely-toasted bread instead of slabs of charred dough, that's not quite true. Two of the cases concerned an attempt to vacate an entry to have a judge properly impose post-release controls, and the third challenged an indictment; in each case, the "opinions" each consist of a paragraph or so rejecting a writ of habeas corpus or mandamus as a means of doing so. Adequate remedy at law, and all that. Oh, and in one case, the defendant forgot to attach a copy of his commitment papers, and in another, didn't file a statement of his inmate account "for each of the preceding six months, as certified by the institutional cashier," each of those on its own rendering the petition fatally defective. For all the talk of the relaxed standards of "notice" pleading, state habeas work is one area where hypertechnicality reigns supreme.
On to the courts of appeals, where men are men, women are women, and opinions are opinions...
Medical malpractice and tort reform. I ran into a friend of mine the other day at the Justice Center, a lawyer who's in one of the top PI firms in Cleveland. I knew he used to do a lot of medical malpractice work, and I asked him how that was going. "Used to" seems to be the operative words. He told me that some of the guys in his firm still do it, but it's been brutal since the caps on malpractice awards were put in back in 2003. "Defense firms are laying off people," he told me. "Filings are maybe 15% of what they were.
Not quite that bad, but the stats do bear out that there's been a substantial fall-off. According to the annual Ohio courts summary the Supreme Court puts out, there were 6,436 "professional tort" cases pending at the end of the year in 2001, including 2,650 that had been filed that year. In 2010, those numbers were 3,272 and 1,422, respectively. It's easy to understand why the falloff occurred, especially given a recent study which shows that only 20% of medical malpractice cases result in a plaintiff's verdict or settlement.
Whether tort reform has succeeded in doing what it was supposed to do -- eliminate "frivolous" suits, lower medical costs, reduce malpractice premiums -- is another matter. The first was always a bogus argument. Given the huge advance layout in med-mal cases -- a lawyer can wind up fronting $100,000 or more for experts -- as the author of the study noted, "A lawyer would have to be an idiot to take a frivolous case to court." Studies have found that malpractice payouts and premiums are a negligible piece of the health care pie, even if you include the costs of so-called "defensive medicine." Texas offered a promising example of how caps and other reforms could reduce malpractice premiums: as this New York Times article indicates, premiums fell an average 21.3% during the four years following tort reform legislation there. That may be an anomaly, though; this piece notes that while payouts in med-mal cases fell 15.7% between 1991 and 2002 in states with caps on awards, the median annual premium in those states increased 48.2%, actually more than in the states without caps (35.9%).
One might argue that what's happening with medical malpractice isn't much different from what's happening with torts in general. I know a number of lawyers who dabble in personal injury, who simply won't take the fender-bender/soft-tissue cases any more. Ten or fifteen years ago, you could take a case like that, with $400 in ER treatment, a few hundred more in doctor's visits, and a grand in physical therapy, and get five or six thousand for it. Now, the insurance company will offer you $1900 if you're lucky. If you try the case, it'll cost you another grand to take your doctor's deposition, and in today's climate, a jury won't give you much more than what the insurance company offered. So you settle the case, cut your fee, spend a few hours on the phone trying to get the medical providers to cut theirs, and you still wind up with a pissed-off client who can't figure out why she only got a few hundred for the same injury that, according to the newspapers, people in California are getting millions of dollars for.
Then again, every now and then the good guys win one. (And yes, "good" is a relative term here.) I ran across this story about a personal injury case that was settled after one of the jurors fainted twenty minutes into the plaintiff's lawyer's opening statement. The plaintiff had suffered multiple breaks of his right leg and a shattered ankle in a truck accident, but 12 subsequent surgeries had resulted in numerous complications and infections that ultimately required the foot to be amputated. The lawyer was in the midst of explaining one of the procedures, a debridement, in rather graphic detail: the doctors "cut the infected, rotting flesh out of his ankle. And that includes his skin, that includes the subcutaneous muscle, and that includes dead, rotting, infected bone." (A demonstrative exhibit of the procedure that the lawyer used in his opening is on the right.) That proved too much for one of the jurors; other jurors caught her as her eyes rolled back, and that brought a halt to the proceedings as EMS was called.
It also brought a halt to the trial. Defense counsel stopped the plaintiff's attorneys on their way to lunch, and suggested a resumption of settlement negotiations. The case was settled for $10 million, four times what the defense had offered before trial, and twice what they'd offered on the day of trial.
One for the road. Over the objections of police, restaurateurs, and just about everybody except the National Rifle Association, Ohio recently enacted a statute allowing people with concealed carry permits to take guns into bars and restaurants that serve alcohol. The law's critics have raised the spectre that the law will result in shootouts like the one caught on tape here:
On the other hand, maybe not. Last year, Virginia passed the same law, and, as this story indicates, the result hasn't been a return to the days of the Wild West:
The number of major crimes involving firearms at bars and restaurants statewide declined 5.2 percent from July 1, 2010, to June 30, 2011, compared with the fiscal year before the law went into effect, according to crime data compiled by Virginia State Police at the newspaper's request.
And overall, the crimes that occurred during the law's first year were relatively minor, and few of the incidents appeared to involve gun owners with concealed-carry permits, the analysis found.
We're not talking a big sample here: it's only eight fewer incidents than happened the year before. Still, there were a lot of predictions that broadening concealed-carry laws -- which virtually all states have now -- would lead to shootouts becoming more commonplace, and none of that materialized; in fact, crime is now at its lowest point since the early 1960's. That's not to suggest that the two are related; correlation doesn't prove causation. But there may be something more to the observation that an armed society is a polite society than some people would like to admit.
Of the various career decisions I've made in my life, getting on the list for handling cases assigned to the mental health docket probably wasn't the best. In the last two weeks, I (a) did a plea for a defendant who told the judge that one of his psychiatrists informed him that he had half a brain, (b) did a plea for a defendant from the Virgin Islands who referred to the judge as "your worship" in the answer to each question she asked him, and (c) ran a city block to chase down another client who'd walked out of court, to bring him back so he could be remanded in a probably vain attempt to restore him to competency. The good thing about the last one is that I'm told it gives me a leg up in the application process the next time there's an opening on the Fugitive Task Force.
As I walked out of court after the last effort, I ran into my buddy John Martin, the elfin head of the county public defender's appellate division. "Hey, Bensing!" he grinned, "That's a good-looking suit. Didn't they have one in your size?"
We shook hands. "Tell me, John, I keep forgetting. Is it midgets or dwarves whose bodies are in proportion, like yours?"
The pleasantries out of the way, we got to talking shop. In this case, his New Big Idea: that a jury has to make the determination of whether two offenses are allied.
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