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.
The 2nd District has long had the reputation of being perhaps the best appellate district in the state. I've found that to be true, for the most part; the court's opinions are usually thoughtful and well-written, and sometimes go "outside the box." For example, as I discussed here, they're perhaps the only court in Ohio which is still willing to provide some meaningful review of sentencing decisions, and doesn't believe that Foster gave trial judges unfettered discretion in sentencing.
If there's one weakness in the 2nd's decisions, it's in search and seizure law. The 2nd has a disturbing tendency to show up in my Bullshit Traffic Stop of the Week™ feature, such as here (patdown for jaywalking), here (failure to put on signal 100 feet from intersection), and here (failing to put turn signal on when pulling away from the curb). Perhaps most troubling are its decisions in State v. Harding and State v. Williams. Back in 1998, police stopped a guy on a "generalized hunch" and patted him down, finding a bag of crack cocaine. He had a couple of outstanding warrants, and the State tried to argue that the exclusionary rule didn't apply because of that. The 2nd District rejected that argument, finding that "if we were to adopt the reasoning advanced by the State, then any individual with even a minor misdemeanor traffic capias has forfeited any and all Fourth Amendment safe guards." Ten years later, in Harding and Williams, the 2nd reversed itself, holding that a person who has an outstanding warrant "has no reasonable expectation of privacy to be free from arrest and search by the police."
So it was good to see the 2nd come down with a couple of 4th-Amendment friendly decisions last week.
I've written before of the various approaches to appellate practice, one being that you winnow your arguments down to the best ones and go with those, the other that you throw every conceivable claim out there and hope you hit paydirt. I generally tend toward the former approach, but the nice thing about the latter is that it can provide you with a good bit of legal education in a single case.
The most important case for the US Supreme Court came from the 11th Circuit last week; in a 2-1 vote, they struck down the individual mandate in the Affordable Care Act, the health reform bill passed last year. Given the 6th Circuit's earlier affirmance of the bill, by the same 2-1 vote, unless the 11th would grant en banc review and reverse the panel, this creates the split in the circuits which virtually mandates Supreme Court review. (A decision is also pending in the 4th Circuit.) You can wade through all 304 pages of the 11th Circuit's opinion here, or a short synopsis of the opinion here. Notably, the court did uphold the remaining portions of the bill, reversing the district court's decision in that regard, but the distinction might not mean much. The individual mandate, which requires individuals to purchase health insurance, is an integral part of the bill: much of the rest of it imposes substantial new, and costly, requirements on insurance companies: elimination of lifetime caps and exclusions for pre-existing conditions, and a broadening of covered conditions. Contrary to public perception, many of the uninsured are not too poor to afford it, they're mostly young and too healthy to think they need it. Without bringing those people into the insurance pool, for which insurance companies will get premiums with little occasion for payout, the whole scheme collapses. In any event, should the Court take the case, anticipate a decision in late June of next year, just before the presidential conventions.
SCOTUSBlog has also come out with its annual Statpack for the 2010 term, where you find how rookie Justice Elena Kagan did with
runners in scoring position and two out -- oops, no, it doesn't tell us that, but it does inform us that the Court handed down 75 signed opinions, granted summary reversals in five more cases, and affirmed two by 4-4 votes because of the recusal of Kagan. We also find that Scalia was by far the most vocal in oral argument, asking an average of 25.8 questions; Kagan, befitting the "seen but not heard" rule for newbies on the Court, asked the fewest (10.6) besides Thomas, who asked none. I'll have more little bits of trivia like this during the upcoming Case Updates until the Court's term begins in October, so stay tuned, especially if you want to win some bar bets.
Nothing going on down in Columbus, so let's head over to the courts of appeals...
Not quite. Unless Judge Dick Ambrose decides to ignore the jury's recommendation, Anthony Sowell is going to get the needle. Had the jury come back with life without parole, that might indeed have put the kabosh on any future capital indictments here, for a couple of reasons.
There's an old saying that money isn't worth your life, and Marcell Bell should've heeded it. He was sitting in his car when Tonio Hudson approached him, shoved a gun in his face, and demanded money. Bell refused, and Hudson repeated the demand. Bell refused again, and Hudson again demanded it, punctuating his request by shooting out the rear passenger window. Bell was unbowed, refusing one final time, and so Hudson shot him twice in the face. Bell died later that night.
Hudson raised a bevy of issues in the appeal from his conviction. The 8th District rejected all of them, but agreed that the two murder convictions (one for felony murder and one for aggravated murder) should have merged, so it sent the case back for resentencing. The judge imposed the same sentence she had originally -- 28 years to life -- and so Hudson appealed again, this time arguing that a 28-to-life sentence for a first time offender was disproportionate.
There were a number of reasons to reject that argument, as the court did last week in State v. Hudson, the main one being that one guesses Hudson's lack of a prior criminal record has less to do with his innate good nature than that he simply hadn't had much time to acquire one: he was just two months past his 18th birthday when he murdered Bell. Hudson bore the burden of persuasion on this, and the court correctly held him to that, noting that "Hudson has failed to demonstrate how his sentence violated Ohio's sentencing statutes" and that "nothing in the record suggests that the trial court's decision was unreasonable, arbitrary, or unconscionable." The range of penalties for aggravated murder are relatively limited: it's 20, 25, or 30 years. The judge picked the middle one, end of story.
Still, some portions of the Hudson opinion demonstrate the futility of seeking appellate review of sentencing at this point.
"Why are we arguing this?" the prosecutor asked me as soon as I walked into the Main Courtroom, five minutes before oral argument. I should've paid more attention to the fact that I didn't have a good answer to that question.
Could be the heat. Sure, Cleveland isn't Dallas, and we've yet to hit three digits on the thermometer, as Dallas has for over a month. And the old Courthouse where the 8th District toils, despite having been built during the Taft administration (the Federal, not the Ohio, one), does have air conditioning. The last oral argument I had didn't feature amounts of perspiration vaguely reminiscent of Cool Hand Luke (which beat out Ben Hur and Body Heat for the title of Sweatiest Movie of All Time), although I probably wouldn't have fared any worse if I'd eaten eggs rather than argue my case. For whatever reason, though, the 8th handed down only fifteen decisions last week, seven in criminal cases. But three of them take interesting perspectives on signficant areas of constitutional and Ohio law, so I'm going to spend this and the next two days discussing them in detail.
Nothing from Columbus, or DC; in fact, there'll be nothing from the latter until the Court commences its next term in October. I'll have a preview of the upcoming cases before that, including the big one on whether police need a warrant to place a GPS device on a car. In the meantime, in rereading some of the cases from last term, I came across an addition to my collection of Favorite Scalia Lines. He can go over the top a lot of times, especially in dissent, but then there's this footnote to the decision in Brown v. EMA, striking down on First Amendment grounds California's law against selling violent video games to minors:
One study, for example, found that children who had just finished playing violent video games were more likely to fill in the blank letter in 'explo_e' with a 'd' (so that it reads 'explode') than with an 'r' ('explore'). The prevention of this phenomenon, which might have been anticipated with common sense, is not a compelling state interest.
On to the courts of appeals, which unlike their betters, have been busy...
Bullshit lawsuit of the week.™ Okay, you're on a business trip, you come out of your room, and there's a USA Today just outside the door. You pick it up, figuring it'll give you something to read while you're eating breakfast. It's only later when you're checking out and you happen to glance at your bill that you see the hotel has added a 75-cent charge for the paper.
So what do you do? Well, if you're a non-confrontational weenie like me, you'll probably figure you're out 75 cents and that's the end of it. Or maybe you'll grow a pair, march down to the hotel desk, and berate the management for charging you for something you did not request and, unless they had a bellhop stationed outside your room doing surveillance, have no proof that you received.
And that's the problem with you and me: we don't think big. If we did, we'd file a Federal class-action suit against the hotel. And to show that our suit wasn't motivated by simple greed -- that of ourselves as lead plaintiff, to say nothing of our attorneys who will share in the bounty -- we would show off our ecological bona fides by throwing in some stuff about how hotel guests may not be reading the paper anyway, which results in "offensive waste of precious resources and energy," a serious problem given that "deforestation caused by paper production is a matter of concern and worry in this state, country and worldwide."
It probably wouldn't surprise you if I told you this happened in California.
Wake me up when it's time for redirect. As I've shuffled over this mortal coil, I've pondered many of the great metaphysical questions. What is the meaning of life? Is there a God? If there is, why does he allow people to suffer in wars, famines, natural disasters, and by watching Rob Schneider movies?
Well, it looks like I'll have to add another one: How long do I have to sleep during a trial before getting hit with an ineffective assistance of counsel claim?
That was the question the 6th Circuit wrestled with in their decision last week in Muniz v. Smith, a habeas appeal in which Muniz claimed submitted an affidavit from a juror in his trial which read:
4. While the prosecutor was cross-examining Mr. Muniz, I glanced at defense table and was surprised to see that Mr. Muniz'[s] defense attorney [was] sleeping;
5. It was apparent to me that Mr. Muniz'[s] attorney was actually sleeping through a portion of his client's testimony.
It is probably not a source of pride to our profession that there is a substantial body of case law dealing with this precise subject, which is summed up by the Muniz court as foll0ws: "the denial of counsel with presumed prejudice only occurs once counsel sleeps through a 'substantial portion of [defendant's] trial.'" Muniz cannot meet this standard:
The record shows that Muniz's attorney was not asleep for the entire cross since he objected near the end of the questioning. This is especially significant, given that the total cross-examination was fairly short, spanning only 26 pages of trial transcript. Muniz's lawyer therefore must have only been asleep for a brief period.
There's some consolation for Muniz, though: he might not have been able to establish the prejudice prong under Strickland, but he did establish the deficiency prong:
Muniz has made a sufficient showing that the standard of conduct by his attorney fell below the objective standard of reasonableness. There is no suggestion in the government's brief, nor could there be, that Muniz's attorney fell asleep at trial because in his "reasonable professional judgment" it was the best course of action.
You can't make this stuff up.
Makes me proud to be a lawyer. Another shining moment for our profession comes courtesy of this email by lawyer Jeffrey Steinberger, sent to various TV producers (hat tip to The Agitator):
As a Celebrity Criminal Defense Attorney, Former Prosecutor, Law Professor, and Judge Pro Tem, Attorney [Jeffrey] Steinberger can provide expert legal commentary regarding any story involving any Celebrity Arrests, Conviction or Sentencing (i.e. Drug Rehab; Jail Time; Alternative Sentencing, etc.).
Attorney Steinberger is available to discuss all civil matters as well and any other legal matter not mentioned above.
Attorney Steinberger is able to take a position on either side of any case - defense or prosecution.
In Attorney Steinberger's 15 years of doing "hits" for all the major news channels, I have provided legal commentary for CNN, MSNBC, FOX News and ABC, NBC, CBS news networks, as well as CourtTV, Inside Edition, Access Hollywood, Entertainment Tonight, and Showbiz Tonight.
That ability to "take a position on either side of any case -- defense or prosecution" is so invaluable.
Man bites dog, dog sues man. Let's say that you come across a car accident, and pull the driver from the burning wreckage. Oops. Turns out he had a back injury, and as a result of your dragging him from the car, instead of waiting until EMS could arrive and put him on a backboard (or collect his body parts if the car had blown up in the meantime), he's been rendered a quadriplegic. Relax; he can't sue you. Under Ohio's Good Samaritan law, if you give first aid or other emergency care or treatment to someone suffering an injury or sudden illness, you're protected from suit by them unless your conduct is willful and wanton.
But what if you got a nasty case of smoke inhalation as a result of your rescue attempt, which has damaged your lungs. Can you sue him?
David Kelley and Mark Kinkaid of Marion, Ohio, are going to find out. Back in March of 2009, they came across a burning SUV which had run off the road. They scrambled down an embankment, wrenched the door open, and pulled out the driver, Theresa Tanner. Just in time, too; Kelley said that "the flames were so hot when we got to her that her hair was melting to her head -- melting." Tanner spent several weeks in intensive care.
Kelley and Kinkaid didn't come out of it unscathed. Kelley, only 39, claims his lungs were so badly damaged from the smoke that he can't carry a laundry basket up the three flights of stairs in his home. And when they found out that the reason for Tanner's "accident" was that she was trying to commit suicide, they sued, relying on the "rescue doctrine," a principle of tort law which holds that someone who negligently or intentionally places themselves in a position of peril may be liable for the injuries sustained by a person who attempts to rescue the imperiled person.
Not sure how I feel about that; I can see both points of view. But the story sure doesn't give you the warm fuzzies, does it?
It may have seemed like a good idea at the time. Well, probably not. There's frequent mention in the case law about the connection between drug dealers and guns, but Boller, Osman, and Abdi weren't exactly students of the law. Boller was a common thug, and the other two were 16-year-olds from Columbus, visiting some buddies in Athens County and looking for a thrill. So a thrill it would be: they'd rob a drug dealer.
The plan was tactically sound: Boller was to remain at the roadway, providing cover with a rifle, while the other two approached the trailer. When the dealer opened the door, Osman pulled a gun, but things went all to hell in a hurry. Turns out the dealer was expecting them, as were several of his friends. Osman and Abdi scampered down the driveway as gunfire erupted from the trailer. They were unharmed, but Donnie Putnam wasn't so lucky. He'd picked that particular time to drive up to buy some drugs. He saw the two boys at the door at the trailer as he pulled up, and got out to see what was happening. A bullet fired by someone in the trailer hit him in the chest, mortally wounding him.
Boller and the others were quickly caught. They were separately tried for aggravated robbery and felony murder, which makes you guilty of a homicide if somebody dies as a result of your commission of another felony, in this case, the robbery. Each was convicted, and given maxium consecutive sentences of 28 years to life.
I was retained to handle the appeal. Normally, I'm not one for throwing a lot of assignments out there, but this time I did: nine in all. Two weeks ago, in State v. Abdi, the 4th District gave short shrift to eight of them, but reversed on the first, holding that aggravated robbery and felony murder were allied offenses, and remanding the case for determination by the trial court of whether they were committed with a separate animus.
I've done a recap of the Supreme Court decisions at the end of term for the past several years, and here's the one for the 2010 term, focusing on criminal and civil liberties issues, and giving a brief summary of each decision. I'm also doing something different this time; instead of the link to the case taking you to the opinion, it will take you to the SCOTUSBLOG web page for the case, where you can access briefs, lower court opinions, and commentary about the case. You can also access the actual opinion through the web page. I'll also include a link to anything I wrote about the case, either the oral argument or when the decision was handed down.
You can bookmark this post, or you can find it by typing "recap 2010″ in the search box at the upper right corner.
After the massacre last week, in which the State suffered no fewer than eight reversals, things return to normal, with defendants winning only two cases. Both of them are sex offender registration and notification cases, and they raise the intriguing question of how the State will ever win another one.
Summertime, and the bloggin' ain't easy... Especially since the Supreme Court's not in session, and its Ohio counterpart isn't exactly working overtime to fill the lacuna. To be sure, there was one decision from the latter court last week, State v. Short. Short had threatened his wife that he would kill her if she ever left thim, then when she did, made good on his threat, also dispatching a male friend of hers in the process. Most of the appeal centers on Short's buyer's remorse for having waived his right to present mitigation evidence during the penalty phase. Although there's no constitutional requirement that a defendant's waiver of this be formalized, there is under Ohio law: in State v. Ashworth, the Supreme Court held that when a defendant wishes to waive the presentation of all mitigating evidence, "a trial court must conduct an inquiry of the defendant on the record to determine whether the waiver is knowing and voluntary." As in virtually everything in life, there's a catch: it must be all mitigating evidence. Here, the defense had cross-examined witnesses during the guilt phase to show that Short was emotionally distressed both by his wife's departure and his response to that. That, the court decides, is mitigation.
Speaking of the other white meat -- er, Supreme Court -- I'll have a summary of their last term on Wednesday, and on Thursday I'll have a discussion of just how far you can take the allied offense jurisprudence in the wake of December's decision in State v. Johnson. Tomorrow, of course, will feature the weekly roundup of the 8th District's decisions. Now, on to the courts of appeals...
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