September 2011 Archives
Jimmy Dimora needs to read this. There are a lot of important decisions to make in life, but for a criminal defendant, there are few more important than whether to plead or go to trial. Having a felony conviction is certainly not going to enhance your job prospects, but the consequences of a having that conviction result from a guilty verdict after trial are heightened by the probability that your job prospects in that event are going to be limited to making license plates for some substantial period. Four years ago, I wrote a post about the "trial tax," citing research which showed that defendants who went to trial received sentences about three times as high as those who pled. Doc Berman over at Sentencing Law & Policy emphasized the point the other day by noting a story about two men who got 60 and 45 years in prison in a stock-swindling scheme. No sympathy from this quarter: many of the victims, mostly elderly, lost their life savings, and in my book trying to cheat elderly people is maybe one rung up from child molesting. What's notable, though, is that those two went to trial; others involved in the scheme pled, and got substantially less time. Including the former president of the company which ran the scheme, who wound up with five years.
Here in Cuyahoga County, we're at two years plus of the prosecutions for the corruption scandal in county government. One of the main targets of the investigation, Jimmy Dimora, is scheduled to go to trial in January. The other main target, former county auditor Frank Russo, pled guilty a little over a year ago, and received a 22-year sentence. That's a lot of time for a guilty plea, you say, and you're right; Russo, though, had refused to cooperate with Federal investigators. Since then, he's had a change of heart, and is testifying against various other defendants. When the case is over -- and Russo is slated to testify against his former buddy Dimora -- Russo will be resentenced. In the meantime, he's yet to report to prison.
That wasn't an option given to former Common Pleas Judge Bridget McCafferty. At Dimora's request, she set up a pretrial to try to get a settlement in a case involving one of Dimora's cronies. She didn't do much good -- on the wiretaps, she can be heard apologizing to Dimora for not settling the case as low as Dimora had wanted -- but when the FBI came to her door at 8 in the morning and started asking her questions about it, she denied it. She was charged with lying to the Feds, and went to trial. She lost, and although the guidelines made her eligible for probation, the judge made an upward departure and gave her fourteen months. Last month, she denied McCafferty's request to further delay going to prison.
There's another aspect to this, though, as noted in this New York Times article from last week. Because of the passage of mandatory minimum sentences and other laws which substantially increase criminal penalties, prosecutors now have extra leverage in securing a plea. The article highlights the case of Shane Guthrie, who was accused of beating his girlfriend and threatening her with a knife. After he refused a plea offer which would have entailed a two-year prison sentence, and then another one for five years, the prosecutor upped the ante by filing charges which would result in Guthrie's serving life imprisonment if he's convicted.
That's a major reason for the decline in criminal trials. In the 1970's, about one case in twelve went to trial in Federal court. Now, it's fewer than one in forty. The same effect is found in state courts. As the article relates,
The first thing Denis deVlaming, a prominent Florida criminal defense lawyer, does with a new client is pull out a calculator to tally all the additional punishments the prosecutor can add to figure the likely sentence if the client is convicted at trial.
"They think I'm ready to charge them a fee, but I'm not," he said. "I tell them in Florida, it's justice by mathematics."
Well, here's an idea if the red-light cameras don't work. Albany, Georgia, recently enacted a ban on baggy/saggy pants, with fines of up to $200 for repeat offenders, and, as this article notes (h/t to LegalBlogWatch), it's resulted in swelling the city coffers by a cool $4,000. Based upon my own observations in the Justice Center (and yes, I would like to know the thought process by which one concludes, "I should have my underwear showing when I'm being sentenced today"), I think a similar ordinance in Cleveland would allow the city to balance its budget.
See you on Monday, and I'll have my pants pulled up all the way.
It's funny. I've spent the last several years proclaiming that the 8th District is the most 4th-Amendment friendly court in the state. I've also mentioned that while the 2nd District consistently turns out some of the best appellate opinions in the state, it's weak on search and seizure issues. So what happens? One of the judges from the 8th sits in the 2nd by assignment, and provides the deciding vote (and writes the opinion) in a case upholding a protective sweep. That case, State v. Young, and the
6th 9th District's decision in State v. Milton, were two on that subject last week.
You're representing a defendant who was involved in a bar fight that went seriously bad. Some punches were thrown, and the next thing you know the loser was on the floor and about four or five guys were stomping the hell out him. A fractured skull, five days in a coma, and he doesn't come out the other side, so now your client's looking at a murder charge. Your investigator has gotten a detailed statement from one of the witnesses, and he tells you he has good news and bad news.
"What's the bad news?" you ask, being a glass-half-empty kind of guy.
"Your boy definitely threw the first punch. And the second. The third, too, which is when the victim goes to the floor."
"And the good news?"
"He left right after that. Didn't hang around for the stomping."
So here's the question: do you turn that statement over the prosecution?
As I mentioned on Friday, there are few things more discouraging if you're doing an appeal than completing your review of a lengthy trial transcript and realizing that the judge ran a clean trial. Oh, sure, you always have manifest weight and sufficiency issues, but if patriotism is the last refuge of the scoundrel, those are the last refuge of the appellate attorney. You can count on the fingers of one hand the times that's been successful.
Well, get another hand, because last week the 8th reversed no fewer than five cases for insufficiency or manifest weight.
This is what it has come to. I can't write about any decisions from the US or Ohio Supreme Court, because the former hasn't begun its term yet, and the latter is producing little of consequence at the moment. I can't write about oral arguments, because nobody's having any until next month. So, for lack of anything else to write about, I find myself scouring SCOTUSblog's list of "Petitions to Watch," that is, petitions for certiorari that the Court will take up in their first conference of the term today.
What I have learned is that SCOTUSblog's interests do not invariably coincide with my own; among the petitions they find worth watching is the one in Nucor Corp. v. United States, which presents the following issue:
Whether the Tariff Act of 1930 - which defines "dumping" as "the sale or likely sale of goods at less than fair value" and "dumping margin" as "the amount by which the normal value exceeds the export price or constructed export price of the subject merchandise" - unambiguously excludes above-fair-value sales ( i.e., those sales that do not constitute "dumping") from the statutory formula for "weighted average dumping margin."
If at some future point in time you read more about this case here, please contact the police, because it means I've been kidnapped, and someone else has taken over this blog.
Oral arguments will begin in the US Supreme Court next week, and will resume then in the Ohio Supreme Court too. Time enough to talk about it when it actually happens. For now, on to the courts of appeals...
You know the routine:
PROSECUTOR: When you responded to the scene of the domestic disturbance, what did you do, officer?
WITNESS: I was told by dispatch that the next-door neighbor, Ms. Smith, had witnessed the altercation, so I talked to her.
PROSECUTOR: And what did she tell you?
DEFENSE ATTORNEY: Objection!
PROSECUTOR: It's not being offered for its truth, but only to explain why the officer did what he did afterwards, your honor.
It happens about every day in a courtroom somewhere. And that's why, if you try criminal cases, you absolutely have to have a copy of the 6th District's decision last week in State v. Richcreek when you walk into the courtroom. It's hands-down the best, most thorough decision on hearsay I've come across in the 5½ years I've been doing this blog.
Yesterday we talked about the 8th District's decision in State v. Jefferson, in which the defendant had been convicted of several burglaries on the basis of evidence that had been acquired after the police planted a GPS device on his car and tracked his movements. The court held that Jeffersons's attorney had rendered ineffective assistance by failing to file a motion to suppress the search. As I mentioned, the issue is before the US Supreme Court in US v. Jones, scheduled to be argued around Thanksgiving, so I figured it was a good time to take a look at that case.
Back in 1983, in US v. Knotts, the Supreme Court upheld a search in which the police had put a beeper inside a five-gallon drum of a chemical used to manufacture illegal drugs, and then used it to track the movement of the drum to a cabin, where a search warrant revealed a drug laboratory. The defendant argued that upholding the search would lead to the result that "twenty-four hour surveillance of any citizen of this country will be possible, without judicial knowledge or supervision," but the Court rejected this: "if such dragnet-type law enforcement practices as respondent envisions should eventually occur, there will be time enough then to determine whether different constitutional principles may be applicable."
For Kenneth Jefferson, that time has come.
The prosecutor stands up and says, "We'd like to thank and excuse Juror No. 8, Ms. Johnson." Johnson starts to gather her things to leave, but the trial judge stops her. "Can I see counsel at the sidebar?" The lawyers approach, and the judge tells the prosecutor, "That's the third peremptory you've used against a black juror. I'd like to know the reason for wanting to remove her."
The prosecutor says something about the juror appearing disinterested, but the judge isn't buying it. "I watched the juror, and she didn't seem disinterested to me. I don't think you have a valid reason for removing her, so I'm not going to let you do it."
That's what happened in a Cuyahoga County courtroom about a year ago. Except that it was a white juror, it was the defense that was trying to remove her, and last week the 8th District affirmed it in State v. Davenport.
The US Supreme Court justices have their first conference of the term this weekend, where they'll decide what cases they'll want to hear, in addition to the 42 in which they've already granted cert; that's about half the number of cases they decided last year. In Columbus, only one decision, Dohme v. Eurand America. Dohme was employed as the facilities administrator for Eurand, and his duties included maintaining the plant's fire-protection system. Prior to the arrival of an insurance adjuster, Eurand instructed everyone that only certain employees were to have contact with the adjuster. Dohme wasn't on the approved list, but talked to him anyway, suggesting he look into what Dohme believed was the disappearance of an internal monthly report on overdue fire-alarm inspections. Dohme was fired for insubordination, and sued, claiming his discharge violated public policy. The trial court tossed it on summary judgment, the court of appeals reversed, but the Supreme Court reversed that and reinstated the trial court's ruling. One of the elements of a public policy wrongful discharge case is called the "clarity" element, that there be a clear public policy against firing people for that reason. The court decides that the clarity element needs added clarity, and so clarifies it thusly:
To satisfy the clarity element of a claim of wrongful discharge in violation of public policy, a terminated employee must articulate a clear public policy by citation to specific provisions in the federal or state constitution, federal or state statutes, administrative rules and regulations, or common law.
So, when the legislature or some agency gets around to enacting a statute or regulation prohibiting the immolation of employees, people like Dohme can speak their mind. Not until then, though.
Here, we have a clear public policy of reviewing the criminal decisions of the Ohio courts of appeals, so let's get to that...
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