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. (keep reading…)

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. (keep reading…)

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… (keep reading…)

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. (keep reading…)

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. (keep reading…)

“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. (keep reading…)

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.  (keep reading…)

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… (keep reading…)

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. (keep reading…)