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What's Up in the 8th

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."

The Batson problem arises in State v. Williams, where the State uses five of its seven peremptories to exclude blacks from the jury, for the following reasons:

one juror did not seem interested in the proceeding; a second juror did not take the proceeding seriously; another juror was employed at an establishment inundated by a high rate of crime; a fourth juror failed to remember that a family member was a former assistant county prosecutor; and lastly, the final juror was unemployed and difficult to understand.

The opinions notes that "the trial court engaged in more than a perfunctory inquiry into the state's motivation for exercising its challenges," and finds this sufficient to affirm the denial of the Batson objections.

This isn't to suggest that the court was wrong in doing so; I know both the judge and the prosecutor quite well, and can vouch for the lack of discriminatory intent here.  The problem is that, given the subjective nature of jury selection, as demonstrated by the reasons above, exercise of peremptories is like a police officer's use of traffic violations to pull over a driver he might suspect of something more nefarious:  with a little bit of thought, you can always come up with something.  And given the extremely deferential standard that appellate courts use here, it's questionable whether Batson has any meaning anymore.  The court's finding that the trial court's inquiry into the prosecutor's reasons was more than "perfunctory" offers some hope of using the opinion to persuade a judge not to take the prosecutor's reasons at face value, but that's about as much as you can hope for.

Williams also represents a retreat from earlier 8th District decisions on the evidence necessary to prove a schoolyard specification in a drug case.  Two years ago in State v. Darling, the court held that the specification required the State to show that the school "was operating as a school pursuant to the standards set by the State of Ohio School Board pursuant to R.C. 3301.07."  Williams holds that "testimony alone, recounting the requisite distance and referencing the associated school by name, is sufficient evidence to sustain a school yard specification."

In State v. Logan, the police, while investigating neighborhood drug activity one July night, spot Logan sitting on a bicycle, wearing a sweatshirt with the hood tied tightly, so only his eyes, nose, and mouth were exposed.  The officers found this unusual, given the warm night, and, their suspicions further aroused by reports that previous robbery reports from that area "involved individuals who had pulled their sweatshirt hoods down over their faces in a similar fashion," decided to make further inquiry, and activated their lights.  When Logan started pedaling away, the officers jumped out of their car and shouted "police!"  Logan stopped, and one of the officers could see a handgun sticking out of the side waistband of Logan's jeans.  At the hearing, the officer testified that he stopped Logan "because of what he was wearing and because he was in the shadows."  The judge denied the motion to suppress, finding the whole thing to be a consensual encounter.

The appellate panel correctly rejects the consensual encounter theory (note for future cases:  activating the overhead lights makes it a stop, not a consensual encounter), but nonetheless upholds the search, finding enough reasonable suspicion to justify a stop.  When I first read the opinion, I was a bit critical.  (In the weekly email summary of the 8th's decisions I do for the state and local criminal bar associations, I'd written, "Alien judges from 6th District, where 4th Amendment is merely a rumor, apparently inhabit panel's bodies, search is upheld.")  On further review, I'm not so sure; the facts here aren't much different than those in Terry v. Ohio. 

That brings up another point, though.  Terry involved an officer approaching people standing on a street, and Logan involved them approaching someone on a bicycle.  (Logan didn't apparently start pedaling away until the officers approached in their vehicle.)  One might argue that the legitimacy of an investigative stop requires balancing the level of suspicion with the degree of the intrusion of privacy; would a stop have been justified if the police had observed Logan driving by in a car with his hood tied up like that?  Just throwing that out there.

Joanne Schneider gets a do-over.  A few years back, she pled out to several counts of corrupt activities, based on a what the State contended was a stock fraud scheme that bilked investors of over $60 million, and was sentenced to three years in prison.  The prosecutors belatedly realized that the conviction called for a mandatory ten year sentence, and appealed.  The 8th agreed, and reversed the case.  Upon remand, the case was assigned to a new judge, who overruled Schneider's motion to withdraw her plea.  In State v. Schneider, the 8th reverses that as well; even the State concedes that a plea is not knowingly made where everybody, including the prosecutor, tells the defendant that she's facing three to ten, and she's actually facing ten.  Whether this proves to be a wise decision on Schneider's part remains to be seen;  her new judge is not known for coddling criminals, to understate the matter.  Then again, HB 86 may make Schneider's gamble a good one:  the only way she does worse is if the judge imposes consecutive sentences, and that now requires making findings of fact that could prove problematic in Schneider's case.

Finally, the defendant in State v. Warner learns one of life's invaluable lessons:  just because you can do something doesn't mean you should.  Yes, you can take pictures of yourself with your cellphone, holding stacks of money, with various phrases like "Lil'D" -- your street name -- and "Money TalkZ" underneath.  But when the victim of a burglary can identify you, but knows you only by your street name, and the cops capture you and your cell phone, those pictures are going to come in under the 404(B) exception for evidence to prove identity, and off you go to priZn.

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